delivered the opinion of the Court:
The only questions raised on this record important to be considered are, first, the ruling of the court on the documentary evidence offered by appellants on the trial below; second, the time at which the contract for drawbacks commenced, as affecting the amount of the verdict; and last, instruction five asked by the defendants and refused.
That the documentary evidence offered by appellants, in regard to drawbacks on three hundred and ninety-eight cars, saving and excepting the order purporting to have been indorsed by Fawsett, but not in his handwriting, was proper to go to the jury, will be apparent from the consideration of the character of appellees’ claim.
It is in proof McPherson was not connected with appellants in any other capacity than as agent to procure cattle shipments *520over appellants’ road; that he contracted with Fawsett in June, 1863, that appellants should allow him the same drawback on his shipments of cattle that was allowed him by the Pennsylvania Central and Northern Central, over whose roads the cattle shipped by appellants’ road would pass to the Baltimore market.
Fawsett, in his testimony, says, he looked to McPherson to have the papers arranged so that he could get the drawbacks; intended to take the general routine to do the business; repeatedly asked McPherson to get the papers into shape; thinks very likely he knew the general course of business was that the money was paid by the company to McPherson.
This testimony was given when recalled to rebut the testimony of McCullough, given in his deposition. In his first examination in chief, he testified that he never received money from appellants on account of drawbacks; he applied only to McPherson for payment of drawbacks; during the period of his shipments, he never stated the contract to any officer of the road; went often to McPherson in 1863-4-5, demanding his drawbacks, but did not go to the officers of the road; made his contract with McPherson; he promised to- pay.
Fawsett distinctly states, the usual routine of doing such business was to be taken. What that routine was is shown by the testimony of Louis Erickson and John Wolwork, employees of McPherson, the first named as book-keeper and the other as shipping agent, and by S. J. Glover, the cashier of appellants. From the testimony of these witnesses, the routine of business in regard to drawbacks is clearly established, and was pursued, as the documentary evidence excluded shows. By pursuing that routine, with which Fawsett had full knowledge, the money for drawbacks would necessarily come into McPherson’s hands, and that it did so come on these 398 cars there can not be the least doubt. It is immaterial whether Fawsett gave McPherson distinct authority to receive the money or not; by the routine of the company in such cases it was bound to -come to McPherson’s hands, and to this Fawsett testifies he sub*521mitted. There can not be the least doubt that the drawback on these cars, amounting to $995, was paid by the company to McPherson, and the evidence excluded should have been admitted as tending to show it at least.
In another aspect of the case this testimony was proper, for it appears in the year following, in 1866, — a few months after the receipt of this money—McPherson brought an action against Fawsett, claiming from him more than $20,000 on a cattle contract. To this action Fawsett pleaded a set-off, and swore to the plea. In answer to the question, “ Had you then a set-off against McPherson for the whole amount of his claim,” Fawsett answered: “There was something coming to me—money that had been loaned, or got into his hands some way or another; I gave him $21,000 or $22,000, and whatever was coming to me at that time; I think it was $4,000 or $5,000 McPherson owed me, which he allowed in this settlement.”
How, as no figures, vouchers or other papers were produced by Fawsett, showing the basis on which this settlement was made, was it not a proper question for the jury, did not these $995, which the documentary evidence excluded tended to show McPherson received as drawbacks on these cars, form a part of the $4,000 or $5,000 McPherson allowed Fawsett on the settlement made in 1866 ? It would be fair and reasonable so to argue before the jury, as, in a settlement of a claim so large as the one in suit, it is highly improbable Fawsett, in defending against it, would have omitted so large an item as $995. McPherson’s lips are sealed in death; probabilities must plead in his favor. While Fawsett says he is positive, in his settlement with McPherson, he did not set off his claim for drawbacks, he must be understood to mean, not this particular item of money collected for drawbacks by McPherson, but the claim out of which this suit arises; for Fawsett always knew, so we infer from the testimony, that the company had not paid all the drawbacks claimed.
In this connéetion the third question may properly be dis*522posed of, and that is, the refusal of the court to give this instruction :
“ Y. If the jury believe, from the evidence, that Fawsett authorized and directed McPherson to collect his drawbacks for him, then any payment made by the defendants to McPherson, on account of such drawbacks, was a payment to the plaintiffs, and they can not recover payment for such drawbacks a second time.
“And if the jury believe, from the evidence, that McPherson, as agent for Fawsett and Bankard, did collect the drawbacks for them upon three hundred and ninety-eight cars of cattle, then no further drawbacks can be collected from defendants upon the three hundred and ninety-eight cars.”
From what we have already said, this instruction was proper, because the evidence is incontestible, that the drawbacks were to be paid to McPherson; that they were to come through his hands. He was the agent of Fawsett to receive the drawbacks, as appears from Fawsett’s testimony. He never applied to the company for the drawbacks, always expected to get them through McPherson, and if McPherson received this particular drawback, the company should not be obliged to pay it a second time, the more especially when it is seen that these parties, Fawsett and McPherson, shortly after the receipt of the money by McPherson, had a full settlement of heavy claims, in which, it is extremely probable, this sum of $995 was fully accounted for by McPherson.
The remaining point is, at what time did this contract to pay drawbacks commence?
It appears Fawsett had been shipping cattle on this road from April, 1863, to May 2,1865, but no contract was made in relation to drawbacks until the summer of 1863, as appears by Fawsett’s testimony, and that of Charles Earn. Earn says, the contract he was called to witness was in the summer of 1863, and Fawsett says, that is the contract alluded to in his testimony. That contract was, that Fawsett was to receive the same percentage that he got on the other roads he shipped over. McPherson agreed to see that he should have it. *523“ That was the exact understanding.” The shipments, prior to this time, had been paid for, and no drawbacks claimed or allowed until June, 1863. Fawsett says: “I talked to McPherson about it at different times, but we did not agree on a rate until June, 1863. I told him I was getting a rate from the Pennsylvania road and what it was, and he said he would give me the same.”
That this related to future shipments there can be no doubt. Fawsett told McPherson what the Pennsylvania road was then paying, and he agreed to allow the same. Such language would not be used in regard to a past transaction, and if it is sought to apply it to such a transaction, then there was no consideration for the promise.
The contract should take effect from June, 1863. All allowances of drawbacks prior to that time, by the jury, were unauthorized, and to that extent the plaintiffs recovered more than they were entitled to recover.
For the reasons given the judgment is reversed and the cause remanded.
Judgment reversed.