that term the cause again came on for trial on the merits, and there was a verdict and judgment for plaintiff. Plaintiff appealed from the order continuing the cause, and taxing the costs to him, and defendant appealed from the final judgment; its appeal being first perfected.

T. S. Wright and L. Kinkead, for appellant. Bosquet & Earl, for appellee.

REED, J. On the sixteenth of October, 1882, plaintiff went to Olivet, a station on defendant's road, for the purpose of making arrangements for the shipment, on the next day, of five car-loads of hogs from that station to Chicago. There was no telegraph office at Olivet, and the station agent informed plaintiff that an order for the necessary cars could not be forwarded by mail in time to receive them for the next day. Plaintiff claims that the agent requested him to go to Leighton, a station a few miles away, and have an order for the cars telegraphed from there, and stated that the agent there frequently ordered cars for Olivet. Leighton is on the line of road between Keokuk and Des Moines, while Olivet is on what is known as the "Washington & Knoxville Branch." Both lines are operated by defendant, and they cross each other at Knoxville Junction, a few miles from Olivet and Leighton. The Washington & Knoxville branch has a direct Chicago connection, and it was by that line that plaintiff desired to ship his hogs. He went to Leighton, and, as he claims, informed the agent there that the agent at Olivet requested that an order for the cars be telegraped from there. The agent accordingly sent a dispatch to the train dispatcher on the Keokuk & Des Moines line, requesting him to send the cars to Olivet in time for the shipment the next day. The name of the Olivet agent was signed to the dispatch, and plaintiff saw it before it was sent. He also testified that the agent afterwards told him that he had received an answer to the dispatch, and assured him that the cars would be at Olivet in such time that the shipment could be made on the next day. He claims that, relying on this assurance, he drove his hogs to Olivet, and was ready to ship at the designated time. The cars were not delivered at Olivet, however, until the 19th, and the hogs were shipped on that day. If they had been shipped on the 17th, they would have arrived at Chicago on the 19th. As it was, they reached there on the 21st. A material decline occurred in the price of hogs in the Chicago market between the 19th and 21st. By this action plaintiff seeks to recover the cost of keeping the hogs from the 17th to the time they were shipped, and the difference between what he received for them when he sold them and the amount he would have received if he had been able to place them on the market on the 19th. The Olivet and Leighton agents were both examined on the trial. The former denied that he requested plaintiff to go to Leighton, and the latter testified that he did not give plaintiff any assurance that the cars would be at Olivet the next day; and it was proven that the agent at Leighton had no express authority to transact business for defendant except that pertaining to his own station; also that the train-master, to whom said dispatch was sent, had no express authority to send cars to stations on the other line.

1. The district court gave the following instruction to the jury: “If you find from a preponderance of the evidence that plaintiff applied to the station agent of defendant at Olivet for cars in which to ship his hogs to Chicago, such cars to be furnished at a specified time and place, and thereupon such agent informed plaintiff that he could not telegraph from Olivet, and requested him to go to Leighton station, on another branch or division of defendant's railroad, and have the station agent at that station telegraph to the proper authorities for such cars, and you find that plaintiff did request such agent at Leighton to so telegraph, and you find that such agent telegraphed to the train dispatcher of defendant at Keokuk for such cars to be delivered

or furnished at Olivet station at a specified time, and thereafter informed plaintiff that he had received a reply to the effect that such cars would be furnished at such specified time and place, and you further find that plaintiff relied in good faith upon such information, and, in pursuance thereof, drove his hogs to Olivet, and had them there ready for shipment at said time, and defendant failed to have such cars there at such time, and you find that plaintiff suffered damage in consequence of such failure, then plaintiff would be entitled to recover the damages, if any, resulting therefrom."

If defendant is liable on the hypothesis stated in this instruction, such liability must be upon the ground that its failure to have the cars at Olivet at the time in question was a breach of some contract obligation existing between it and plantiff. Defendant, being a common carrier, is bound to furnish shippers reasonable facilities for the transportation of their property, and would doubtless be responsible to one who had demanded transportation facilities for any damages he may have sustained in consequence of its failure to afford such facilities within a reasonable time after such demand. Plaintiff, however, is not seeking to recover on the theory that there was an unreasonable delay after demand in furnishing the cars, but his claim is that defendant was under obligation to furnish them at a particular time, and that he has been damaged by its failure to furnish them at that time. The doctrine of the instruction is that if plaintiff, at the request of the agent at Olivet, went to Leighton, and requested the agent there to telegraph to the proper officer or agent for the cars, and that agent, acting upon that request, sent the dispatch, and afterwards stated to plaintiff that he had received an answer to it, and that the cars would be at Olivet on the next day, and plaintiff acted on that assurance, defendant was bound to furnish the cars at the specified time, and was answerable in damages for its failure to do so.

That defendant is bound by such contracts as are entered into in its name, by its agents, within the actual or apparent scope of their authority, is, of course, conceded. It was held in Wood v. Chicago, M. & St. P. Ry. Co., 27 N. W. Rep. 473, that a station agent who was authorized to contract for the shipment of property from his station was presumed to be empowered to contract with reference to all the ordinary and necessary details of the business, and that when, from the nature of the property to be shipped or other circumstances, it was necessary or usual to arrange or contract for the shipment of the property in advance of its delivery, the company was bound by his contract to furnish the necessary cars at the specified time, whether he had any express power to make the contract or not. The ground of the holding is that, by placing him in charge of its business at that station, the company held him out as possessing authority to make the contract, and shippers were warranted in dealing with him on the assumption that he had full power in the premises. In the present case, however, the agent by whom it is alleged the contract was made, was not held out by defendant as possessing any power with reference to the subject of the contract. He was not in fact authorized to contract for the shipment of property from Olivet; nor was he held out as possessing such authority. His duties were limited to his own station, and there was nothing in the circumstances which warranted plaintiff in the assumption that he had authority to contract with reference to business at Olivet. The facts of the case do not, therefore, bring it within the principle announced in Wood v. Chicago, M. & St. P. Ry. Co., supra, and the doctrine of the instruction finds no support in that case.

The fact that the agent at Olivet requested plaintiff to go to Leighton, and procure the agent there to send the order for the cars, is not material; for his authority in the premises was neither actual nor apparently enlarged by that request. If the officer or agent to whom the order was transmitted had directed him to make the agreement for the furnishing of the cars on the next day, defendant would probably have been bound by it; but, under the in

struction, plaintiff's right of recovery is not dependent on whether such direction was in fact given, but upon whether the agent represented that it had been given. The declaration of the agent at the time of the transaction is thus made proof of the extent of his powers. The instruction, we think, is clearly erroneous.

2. On the trial plaintiff was permitted, against defendant's objection, to testify to the statements of the broker who sold his hogs in Chicago as to the condition of the market on the nineteenth of October, and as to the price at which he would have been able to sell them if they had arrived in Chicago on that day. The evidence was mere hearsay, and should have been excluded. 3. It was within the discretion of the district court to permit plaintiff, on the first trial after the parties had rested, to introduce further testimony. Code, § 2799. It was also within the discretion of the court to grant a continuance of the cause if satisfied that substantial justice would thereby be more nearly obtained. Section 2749. The continuance was granted, for the reason that plaintiff had asked and obtained leave to introduce evidence material to the case after both parties had rested, and after defendant's witnesses had left the court. The costs of that trial were rendered useless by the continuance, and the continuance was rendered necessary by plaintiff's failure to introduce his evidence at the proper time. The costs were therefore properly taxed to him.

On plaintiff's appeal the judgment will be affirmed. On defendant's appeal it will be reversed.

V.

NOTE.

As to the power of railroad employes and agents to bind the company, see Bushnell Chicago & N. W. Ry. Co., (Iowa,) 29 N. W. Rep. 753; Terre Haute & I. R. Co. v. Brown, (Ind.) 8 N. E. Řep. 218; Sacalaris v. Eureka & P. R. Co., (Nev.) 1 Pac. Rep. 835. As to acts of other agents within the scope of their authority, see Stone v. Hawkeye Ins. Co.. (Iowa,) 28 N. W. Rep. 47; Webster v. Wray, (Neb.) 24 N. W. Rep. 207; Kane v. Cortesy, (N. Y.) 2 N. E. Rep. 874; Talmage v. Bierhause, (Ind.) 2 N. E. Rep. 716; Dolan v. Van Demark, (Kan.) 10 Pac. Rep. 848; Griggs v. Selden, (Vt.) 5 Atl. Rep. 504; Mullin v. Vermont Mut. Fire Ins. Co., (Vt.) 4 Atl. Rep. 817; Lebanon Mut. Ins. Co. v. Erb, (Pa.) 4 Atl. Rep. 8, and note; Trainer v. Morison, (Me.) 3 Atl. Rep. 185, and note; Alderson v. Crocker, 28 Fed. Rep. 745; May v. Western Assur. Co., 27 Fed. Rep. 260. As to those beyond the scope of such authority, see New York Life Ins. Co. v. Fletcher, 6 Sup. Ct. Rep. 837; Hornsby v. Hause, (Minn.) 29 N. W. Rep. 119; Bond v. Pontiac, O. & P. A. R. Co., (Mich.) 29 N. W. Rep. 482; Eaton v. Knowles, (Mich.) 28 N. W. Rep. 740; Hakes v. Myrick, (Iowa,) 28 N. W. Rep. 575; Bigler v. Toy, (Iowa,) 28 N. W. Rep. 17; Jackson v. Badger, (Minn.) 26 N. W. Rep. 908; Seibold v. Davis, (Iowa,) 25 N. W. Rep. 778; Veeder v. McMurray, (Iowa,) 23 N. W. Rep. 285; Barnard v. Coffin, (Mass.) 6 N. E. Rep. 364; Robinson v. Anderson, (Ind.) 6 N. E. Rep. 12; Proctor v. Tows, (Ill.) 3 N. E. Rep. 569; Hibernia Sav. & Loan Soc. v. Moore, (Cal.) 8 Pac. Rep. 824; Merriam v. De Turk. (Cal.) 6 Pac. Rep. 424; Horsey v. Chew, (Md.) 5 Atl. Rep. 466; Kirby v. Thames & Mersey Ins. Co., 27 Fed. Rep. 221. See, also, Com. v. Briant, (Mass.) 8 N. E. Rep. 338, and note, 340; Olive v. Whitney Marble Co., (N. Y.) 8 N. E. Rep. 552, and note.

As to presumptions in regard to the extent of authority, see White Lake Lumber Co. v. Stone, (Neb.) 27 N. W. Rep. 395; Wass v. Atwater, (Minn.) 22 N. W. Rep. 8; Simmonds v. Moses, (N. Y.) 2 N. E. Rep. 640; Smilie v. Hobbs, (N. H.) 5 Atl. Rep. 711.

The question of the extent of the authority is one of fact. Bacon v. Johnson, (Mich.) 22 N. W. Rep. 276; Gano v. Chicago & N. W. Ry. Co., (Wis.) 5 N. W. Rep. 45; Central P. T. & S. Co. v. Thompson, (Pa.) 3 Atl. Rep. 439.

CRAWFORD, Trustee, v. NOLAN and others.

(Supreme Court of Iowa. October 28, 1886.)

1. ATTACHMENT-PLEADING-ESTOPPEL-INCONSISTENT DEFENSES-CODE IOWA, ? 2710. A creditor who has laid an attachment on the stock in trade of his debtor is estopped in an action to recover the goods by the holder of a mortgage executed prior to the levy of the attachment, to set up the defense that before the mortgage was executed the debtor had transferred the goods to him. Such a defense is not within the protection of section 2710, Code Iowa, providing that defenses cannot be objected to because they are inconsistent with each other.

2. ESTOPPEL-PLEADING-DEMURRER.

An estoppel need not be specially pleaded where, on a demurrer, the facts requisite to work an estoppel appear in the pleadings. 3. ATTACHMENT-NOTICE BY CLAIMANT TO SHERIFF-LAWS Iowa 1884, CH. 45, (MILLER'S CODE, 739.)

A notice to the sheriff, who has attached a stock in trade, that a party claims the property under a mortgage, giving its date, and stating that the mortgage was executed to secure certain described promissory notes made by the mortgagor, is sufficient under chapter 45, Laws Iowa 1884, (Miller's Code, 739,) providing that the sheriff "shall be protected from all liability by reason of such levy until a written notice is served on him by the person claiming the property, stating that it belongs to him, and the nature of his interest, and for what consideration."

4. ATTORNEY AND COUNSELOR-COLLECTIONS-AUTHORITY TO EXTEND TIME OF PAYMENT. Where promissory notes, past due, are placed in the hands of a firm of lawyers, with instructions "to secure or collect," the firm has power, through one of its members, to extend the time of payment for 60 or 90 days, when a mortgage is given by the debtor to secure the notes.'

5. FRAUDULENT CONVEYANCES-WHEN CASE SHOULD BE SUBMITTED TO JURY.

In an action by a mortgagee of a stock in trade, to recover the property when attached by a creditor of the mortgagor, where it is pleaded that the mortgage was given for the purpose of hindering and defrauding the attaching creditor, and there is evidence tending to prove that fact, it is error to take the case from the jury, and to order a verdict for the plaintiff.

Appeal from circuit court, Palo Alto county

Action at law. Trial by jury. Judgment for the plaintiff, and defendants appeal.

Harrison & Jenswold, for appellants, Nolan and others. Soper, Crawford & Carr, for appellee, Crawford.

SEEVERS, J. Soper, Crawford & Carr is a partnership engaged in the practice of law, and the plaintiff is a member of that firm, who received for collection through attorneys in Milwaukee and Chicago certain claims against L. J. Baldwin in favor of D. B. Fiske & Co. and the Cream City Cloak Company. To secure said claims Baldwin executed to the plaintiff, as trustee, a chattel mortgage on a stock of merchandise. Baldwin was indebted to Lederer, Strauss & Co., who, after the execution of the mortgage, attached the merchandise, and this action is brought against the sheriff and Lederer, Strauss & Co. to recover the value thereof, or the plaintiff's interest therein. 1. The mortgage was executed on the tenth day of July, 1886, and the plaintiff claimed to recover under the mortgage. The defendants pleaded that on the preceding day Baldwin sold and delivered to Lederer, Strauss & Co. the goods in controversy, and therefore was not the owner when the mortgage was executed, and that plaintiff had full knowledge of such sale and purchase. To this portion of the answer the plaintiff demurred, on the ground that, as Lederer, Strauss & Co. had caused the goods to be attached as the property of Baldwin, it could not be pleaded as a defense that said firm were the owners of the goods at the time they were attached. The demurrer was sustained.

Substantially the same question presented on the demurrer was determined adversely to the appellants in Citizens' Bank of Greenfield v. Dows, 27 N. W. Rep. 459, and that is that a person cannot claim property under two inconsistent rights at the same time. He may select either, but cannot avail himself of both. But it is urged that under the statute a defendant may plead contradictory defenses. Code, § 2710. All that is contemplated by the statute is that such defenses cannot be objected to simply because they are inconsistent with each other. But in this case the assertion of one of the rights pleaded destroys the other. The defense pleaded is not held bad simply beeause another inconsistent defense was pleaded, for in fact such is not the

See note at end of case.

v.30N.w.no.1-3

case, but for the reason that the defendants had attached the goods as the property of Baldwin, and, in order to recover, the plaintiff must establish such fact, and therefore the defendants should be estopped from setting up that they owned the property. It is, however, said that an estoppel cannot exist unless the opposite party has been prejudiced. In reliance on the fact that the defendants claim under the attachment this action was brought, and to now permit the defendants to set up another right would be prejudicial to their interests. The goods were seized under the attachment, and by the defendants converted to their own use. If this had not been done, the plaintiff might have taken possession under his mortgage, and have foreclosed it under the statute, notwithstanding the claimed ownership of Lederer, Strauss & Co. It is further said that an estoppel must be pleaded. This we understand to mean that the facts constituting it must be pleaded, and when this has been done, and a demurrer is applicable, the sufficiency of such facts may be thus tested. Miller v. Elliott, 1 Ind. 484; Beckett v. Bradley, 7 Man. & G. 994. In this case the requisite facts appear in the pleadings, and therefore the demurrer was rightly sustained.

2. It is provided by statute that an officer levying an attachment "shall be protected from all liability by reason of such levy until a written notice is served on him by the person claiming the property, stating that it belongs to him, and the nature of his interest, and for what consideration." Chapter 45, Laws 1884, (Miller's Code, 739.) The plaintiff claims such a notice was given; the defendants insist it is insufficient on the ground it fails to state upon what consideration the mortgage and notes were given. It is stated in the notice that the plaintiff claims the property under the mortgage, giving its date, and stating the mortgage was given to secure certain described promissory notes executed by the mortgagor. The nature and extent of the plaintiff's interest is stated, and also under what right, and that is the mortgage, and it sufficiently appears it was executed in consideration of the promissory notes. The plaintiff's right to the property is the mortgage, and the consideration for it is the notes, and this, we think, is sufficient. Plaintiff was not required to state what was the consideration for the notes.

3. When the claims against Baldwin were placed in the hands of Soper, Crawford & Carr, they were due; and when the mortgage was given, the time of payment was extended 60 or 90 days. It is said an attorney has no authority to grant an extension of time for the payment of a claim. This is conceded to be true unless he has been so expressly authorized, or it can be implied from the instructions given. The instructions were, "Please do your best to secure or collect," and, "We inclose for collection, security, or suit, without delay." To secure is something materially different from payment or collection, and clearly implies and gives a discretion as to the sufficiency of the security to be taken, and also as to extending the time of payment in order to obtain it. But it is said that the authority was to the partnership, and that Crawford alone could not lawfully exercise such discretion. But we think he could. He was acting for the partnership, and it was bound by what he did. Antrobus v. Sherman, 65 Iowa, 230, S. C. 21 N. W. Rep. 579, is materially different.

4. The defendants pleaded that the mortgage was executed for the purpose of hindering, delaying, and defrauding Lederer, Strauss & Co. The court failed and refused to submit this issue to the jury, on the ground, we suppose, that the court thought there was no evidence tending to show fraud. At least appellee so contends. We feel constrained to say that in this respect we think the court erred. Undoubtedly one creditor may lawfully, by the exercise of superior diligence, obtain payment or security from his debtor, and in so doing absorb or take all the debtor has, and it is immaterial that there are other creditors who get nothing. But, while this is so, there must be no intent to wrong or defraud others, but a bona fide intent to protect himself.