The defendant also submitted the following question, numbered 41: "Was not the hand car from which plaintiff fell and was injured used coninuously, without any repair, upon the railroad until the surfacing thereof was completed, and then removed to McPherson Railroad, and there used for the purpose it was used before it was broken ?"

This question the court refused to submit to the jury for answer. The defendant excepted. On March 29, 1884, the defendant filed a motion for a new trial, which motion was overruled. Thereupon the court rendered judgment upon the verdict in favor of the plaintiff against the defendant for $5,750, together with all costs of suit. The defendant excepted, and brings the case here.

J. P. Usher and Charles Monroe, for plaintiff in error.

A. II. Ellis, for defendant in error.

HORTON, C. J. This case was before us at the July term for 1883. 30 Kan. 601; 2 Pac. Rep. 657. Since then a new trial has been had, resulting in a verdict and judgment for $5,750 and costs. This proceeding has been brought to reverse that judgment. The contention of the railroad company has always been that it had the right to contract for the construction of its road from Solomon City to Beloit; that it did so contract; and that, by the law, it is not liable for the injury sustained by Jones, and that if he received injuries by the culpable negligence of any person or company, the Solomon Railroad Company is not responsible therefor. All the evidence given on the part of plaintiff below upon the former trial seems to have been again presented at the last trial, and upon that trial additional testimony was introduced by the railroad company tending to establish that D. M. Edgerton, the president of the Solomon Railroad Company, constructed the road upon his own account from Solomon City to Minneapolis, and that the Kansas Pacific Railway Company constructed the road from Minneapolis to Beloit. We are satisfied with the law as previously declared by this court upon all the questions involved in the former presentation of this case, and several of the same questions therein decided are again elaborately argued. Notwithstanding the additional or further evidence on the part of the Solomon Railroad Company at the late trial, we cannot say it was so conclusive as to overturn the verdict. The jury were the exclusive judges of the weight of the evidence and of the credibility of the witnesses; and, as we said in the former opinion, although the actual facts of the case tend to show that the "Kansas Pacific was the real builder and owner of the road," sufficient evidence was before the jury to authorize the verdict. Railroad Co. v. Jones, 30 Kan. 601; S. C. 2 Pac. Rep. 657.

Deeming it useless to again discuss the questions of law settled in the former decision, and now presented for re-examination, we shall notice only the important matters argued, which were not passed upon when the case was here before.

It is urged that as the jury found the Solomon Railroad Company

"entered into a written contract with J. P. Usher for the construction of its road, and that J. P. Usher assigned the contract to D. M. Edgerton, and that as the evidence did not show the Solomon Railroad Company ever made any other arrangement for the construction of its road, the inevitable conclusion is that the work was constructed pursuant to the contract, or by a volunteer; and therefore that the Solomon Railroad Company is not liable to Jones, who was at work at the time of his injury on the construction. Non sequitur, the contract was not made public, nor did Jones have any knowledge or information thereof. Under subdivisions 1, 2, and 3 of the syllabus of the former decision a liability might attach to the Solomon Railroad Company, although Edgerton had taken an assignment of the contract from Usher, and the company had made no other arrangement for the construction of its road. Counsel refer to the case of Chicago & G. E. Ry. Co. v. Fox, 41 Ill. 106, as very much like the case at bar, and as an authority that the instructions of the trial court were erroneous, and also as tending to show that there was no evidence to support the verdict. In that case Fox & Howard were the owners of a pile-driver. One Vosburgh was a contractor to construct a bridge for the railway company. He applied to Fox & Howard and procured the pile-driver, and used it in constructing the bridge. Fox & Howard sought to recover of the railway company for the use of the implement and the work done by them upon the bridge. The company denied the employment, and the court very properly held that there was no evidence to support the verdict. Vosburgh, the contractor for the Chicago & Great Eastern Railway Company, was not the president or any officer of that corporation; and that case, upon the facts, is easily distinguishable from this. Here, D. M. Edgerton was the president of the corporation sued, and, according to the testimony of Jones, paid him on September 26, 1879, for work upon the construction; and when Edgerton paid him off Jones asked "if he would want the men back again," and Edgerton replied: "Boys, you who want to go home can go home; and for those who don't want to go home, there is work for surfacing." Then Jones asked him "when he would commence laying track again," and Edgerton said: "Not before next week. Come back then; there was work for us all." "Where the president of a corporation appears as the active agent in the execution of any work, parties employed by him have the right to assume that he is acting for the corporation, and that his acts in that respect are its acts and binding upon it." Railroad Co. v. Jones, supra.

Much complaint is made of the seventh instruction, and of other like instructions, permitting the jury to find that Jones was an employe or servant of the Solomon Railroad Company at the time he was injured if he had no notice or knowledge of employment from the Kansas Pacific Railway Company, if the jury further found that the work of constructing the road was being done with the knowledge of the v.8P,no.11-47

president of the Solomon Railroad Company, in the name of that company, and that the president of that corporation was personally engaged in superintending and giving general directions in regard to the work and employment of the men engaged thereon. The claim is that Jones was employed about the first of September, 1879, by Patrick O'Riley, who had the entire charge of track laying; that O'Riley was in the employ of the Kansas Pacific Railway Company; and that Jones had notice from the pay-roll receipts signed by him prior to his injuries that he was in the employ of the Kansas Pacific, and not of the Solomon Railroad Company. We perceive no error in the instructions in this regard. Edgerton testified that while he was upon the road between Minneapolis and Beloit, he was the one who gave all the general directions concerning the construction; that he had men under him, and that he regarded himself as the boss of the work until he turned it over to S. T. Smith; that O'Riley was sent to him by the Kansas Pacific; that the authority he conferred upon O'Riley was the immediate charge of the track laying; and that the work was done "in the name of the Solomon Railroad Company, but for the account of the Kansas Pacific Railway Company proper." O'Riley testified that A. H. McLeod employed him to work for the Kansas Pacific Railway Company in 1878; that he was made assistant roadmaster of the Kansas Pacific in May or June, 1879; that in September, 1879, McLeod ordered him to Minneapolis to report to Edgerton or Smeed; that he went to Minneapolis and reported to Edgerton, who ordered him to report to Smeed; and that Smeed gave him entire charge of the track laying. As to the receipts executed by Jones to the Kansas Pacific Railway Company for his services upon the road, the following facts appear, according to his evidence: He was paid only twice while at work, and both times at Minneapolis. The first time Edgerton paid him in person, and at that time he signed the first receipt to the Kansas Pacific. This was about September 26, 1879. The second time he was paid late in October, 1879, for the work done that month, and for this also he signed a receipt to the Kansas Pacific; but his testimony shows that he did not read the receipts, nor have an opportunity so to do, and the reason he gave was that "there were too many men waiting to be paid off, and there was no time for me to read the receipts." We cannot say, as a matter of law, upon the facts, that Jones had notice from the receipts that he was in the service of the Kansas Pacific Railway Company. While a receipt is prima facie evidence of all the facts and statements contained therein, it is open to explanation; and if Jones did not read the receipts, or either of them, and had no reasonable opportunity so to do, he cannot be bound by the contents thereof. Bemis v. Becker, 1 Kan. 226; Bridge Co. v. Murphy, 13 Kan. 35; Wolf v. Foster, Id. 118; Stout v. Hyatt, Id. 243; Railroad Co. v. Doyle, 18 Kan. 58.

Our attention is specially called to the cases of McCormack v. Molburg, 43 Iowa, 561, and Gulliher v. Railroad Co., 13 N. W. Rep. 429,

as laying down a different rule. The decisions in both of these cases refer to written contracts. In the first case it is said in the opinion: "In fact, no excuse whatever is given except that the defendant signed the contract relying on the representation of the plaintiffs as to its contents. This is inexcusable neglect, and the defendant must suffer the consequences of his own folly." In the second case it is said: "The instrument in writing (under consideration) is more than a mere receipt; it is a contract of settlement, and is binding on the parties unless it was procured by fraud." The rule applicable to the conclusiveness of a written contract does not apply to a mere receipt. Concerning the receipts offered in evidence the court fully instructed the jury as follows:

(41) "If the plaintiff had read said receipts it would have been presumptive evidence that he knew he was in the employ of the Kansas Pacific Railroad Company." (43) "A party who can read can have no advantage from the fact that he has not read a receipt which he has signed unless he has proof that fraud has been practiced upon him to induce him to sign it, provided he had an opportunity to read the same." (40) "Though the jury may believe from the testimony of plaintiff that he did not read the receipts signed by him in evidence in the case, nevertheless it was his duty to do so before he signed them, and by law he is charged with the knowledge of their contents, the same as if he had read them, provided he had an opportunity to read the same; but he is not estopped thereby from showing the real facts in regard to such payments, if any payments were made at the time."

The inquiry was made of Jones: "In whose employ were you in November, 1879?" This was objected to by the railroad company as calling for an opinion. The objection was overruled, and an exception taken. Jones answered: "The Solomon Railroad Company." Similar questions arose upon the testimony of Thomas McGuire and other witnesses. The evidence thus obtained was incompetent. Had the question been merely preliminary it would not have been erroneous. Although the evidence was incompetent, we do not think the error occasioned by its admission material. Simpson v. Smith, 27 Kan. 565. A large amount of similar testimony was given on behalf of the railroad company. After Jones and the other witness had stated in whose employ they were in the fall of 1879, upon direct and cross-examination they narrated in detail all the facts concerning their employment. Therefore the jury had before them all the facts as to the persons or company that employed these witnesses.

On February 3, 1880, A. H. Ellis wrote a letter to the superintendent of the Kansas Pacific Railway, at Kansas City, Missouri, asking him to refer the claim of Jones to the proper officer of his company, and to inform him of the intention of the company in the matter. This letter contained a brief statement of the injuries Jones received, and alleged that he was damaged at least $500, but, rather than go to law, would settle for $200 if the matter was closed up at The superintendent wrote, in answer to Ellis, on February 5, 1880, that he would have the matter investigated without delay, and

once.

advise him on receipt of report. This letter was offered in evidence. in connection with the letter of Ellis. The court ruled the letters out, holding that the evidence was not admissible. There was no error in this ruling. Ellis testified "that at the time he wrote his letter he had no employment or agency of any kind whatever from Jones, and that he had no authority from him at the time to write that letter, or any other letter." Jones also testified that "he did not think he ever laid his claim in for injuries with Mr. Ellis against the Kansas Pacific Company." Before the letters were competent it was necessary to show that Ellis had authority to write the letter of February 3d. Counsel for the railroad company cite Marshall v. Cliff, 4 Camp. 133, and upon that authority it is insisted the letter of Ellis was competent evidence in the cause. It was decided in the subsequent case of Wagstaff v. Wilson, 4 Barn. & Adol. 339, that "a letter written to the plaintiff's attorney, before action brought, by the attorney who afterwards appeared in the cause for the defendant, was not evidence of a fact admitted therein without further proof that the defendant authorized the communication;" and PARKE, J., in the opinion in that case, referring to Marshall v. Cliff, supra, said: "The attorney's letter relied upon to prove the joint ownership of the defendants contained an undertaking to appear for them; that was a step in the cause.' The letter of Ellis was no step in this cause. Therefore the case of Marshall v. Cliff, cited by counsel, is clearly different from this. Weeks, Atty. § 223. Again, an attorney has no power, without express authority from his client, to compromise or settle his client's claim. Jones v. Inness, 32 Kan. 177; S. C. 4 Pac. Rep. 95. It was not proved upon the trial that Ellis was authorized to write his letter, or had any express authority to compromise the claim therein referred to.

It appears that Samuel Burkholder was sworn on the former trial of this cause. Having died since that trial, A. H. Ellis was sworn as a witness, and testified to the statements made on oath by Burkholder when he was a witness in the case. Among other things, Ellis testified that "he was present in court and heard Burkholder's testimony given sometime during the month of December, 1881; that at the time Burkholder testified in substance as follows." Ellis thereupon commenced reading the printed transcript which contained in the bill of exceptions the testimony purporting to have been given by Burkholder on the former trial. Ellis stated if the company objected to his reading from the printed copy, he would read from the manuscript bill of exceptions; but the counsel for the company waived the production of the manuscript bill, and claimed it was incompetent for Ellis to read from either. The court thereupon overruled the objection. Subsequently the witness Ellis was cross-examined at great length, and upon such cross-examination testified, among other things, that the counsel for the railroad company prepared the bill of exceptions; that he made suggestions of amendment