evade a fulfilment of the contract on their part, would, in May Term, our opinion, enable them to commit a direct fraud. The demurrer was properly overruled. Per Curiam.-The judgment is affirmed, with 5 per cent. damages and costs. J. A. Liston, for the appellants. J. L. Jernegan, for the appellees. 1854. DART V. LOWE. DART v. LOWE and Another. Where a bailment is for the sole benefit of the bailor, the law requires only slight diligence on the part of the bailee, and makes him answerable only for gross negligence. Where a person has acted as a bailee, in a matter not within the scope of his ordinary occupation, it is incumbent upon the bailor who seeks to render Where the record simply states that issues were joined, but does not set out APPEAL from the Miami Circuit Court. DAVISON, J.—Assumpsit by the plaintiff against the defendants, for goods sold and delivered. The record states that the issues were joined, but it contains no pleas. The Court tried the cause, and found for the defendants. Motion for a new trial overruled, and judgment on the finding of the Court. voce. The plaintiff filed a bill of discovery, and under it Thayer, one of the defendants, was upon the trial examined viva He testified that the plaintiff was a merchant in Peru; that, in November, 1850, Thayer placed in the hands of the plaintiff, who was about starting to the city of Cincinnati, 81 dollars, with which to buy for the defendants, who were also merchants, a bill of store goods. Thayer, when the money was handed to the plaintiff, observed to him, that he would rather pay him for his trouble than go himself. To that remark the plaintiff made no reply. Saturday, 1854. DART LOWE. May Term, During the plaintiff's absence, Thayer received from him a telegraphic dispatch which read thus: "Cincinnati, November 12, 1850. Alvin Thayer: Your money has been stolen. Shall I buy your goods on credit? G. L. Dart." Upon the receipt of which Thayer replied, by telegraph, in these words: "Peru, November 13, 1850. Proportion the bill, and buy fifty dollars' worth. Alvin Thayer." After the plaintiff's return from Cincinnati, he delivered to the defendants the goods set out in the bill of discovery, and also a bill of said goods, which footed up 81 dollars and 40 cents. When this bill was delivered, Thayer asked the plaintiff if he was satisfied. He replied that he was; but always insisted upon his claim on the defendants for the goods delivered, and never waived it. The bill contained no charge for purchasing the goods. It appeared that while on his journey to Cincinnati, a large amount of money was stolen from the plaintiff, among which was the 81 dollars received from the defendants. The evidence relative to the theft clearly shows that it occurred without gross negligence on his part. The plaintiff, no doubt, received the money in the character of a bailee, and his liability to answer the loss depends upon whether any benefit was to result to him from the bailment. The law is thus stated by Mr. Justice Story. "When the bailment is for the sole benefit of the bailor, the law requires only slight diligence on the part of the bailee, and, of course, makes him answerable only for gross neglect. When the bailment is for the sole benefit of the bailee, the law requires great diligence on the part of the bailee, and makes him responsible for slight neglect." But "when the bailment is reciprocally beneficial to both parties, the law requires ordinary diligence on the part of the bailee, and makes him responsible for ordinary neglect.” Story on Bailments, s. 23. In this case the plaintiff was not guilty of gross negligence, and the question to be considered is, Was he a gratuitous bailee? As the transaction of the business entrusted to the plaintiff was not within the scope of his ordinary occupation, it was incumbent on the defendants to prove that, on 1854. THE WABASH V. account of the bailment, he was to receive a compensation. May Term, Whether he was or not was a fact well known to Thayer; yet his examination as a witness discloses nothing definite TRUSTEES OF upon that point. What he said to the plaintiff when the money was handed him, and his failure to reply, afford no proof of an engagement to transact the defendant's busi- BLEDSOE. ness for pay; especially when Thayer himself would not venture to assert the existence of such an undertaking. There is nothing upon the record tending to prove that the bailment was, in any respect, to result in benefit to the plaintiff. But, from the whole case, it may be fairly inferred, that what the plaintiff engaged to do was to be done gratuitously. The proofs, in our opinion, did not support the finding of the Court. But the record does not set forth any plea to the declaration. This may have been a clerical omission. We must, however, presume that no plea was filed. The proceedings, on that account, are defective. If there really was no plea, there could have been no issue in the cause. A trial without an issue is erroneous. 2 Ind. R. 36. We are of opinion that a new trial should have been granted. Per Curiam.-The judgment is reversed with costs. Cause remanded, &c. D. D. Pratt and N. O. Ross, for the appellant. THE TRUSTEES OF THE WABASH AND ERIE CANAL v. BLED- Where work is done by one person for another, a precedent request may be implied from circumstances. Where a party has procured the affidavit of a third person, and obtained a continuance thereon, the affidavit may be read at the trial, as evidence of the admissions of the party. The declarations of an agent are admissible in evidence against his principal, except so far as they relate to the fact of his agency. 5 133 164 83 May Term, An irregularity in admitting an agent's declarations before proof of his appointment, is cured by subsequent proof of the fact. 1854. TRUSTEES OF V. BLEDSOE. Saturday, May 27. A witness was allowed to refer in his testimony to certain books, in order to refresh his memory, without producing them. Held, that this was not error. ERROR to the Vigo Circuit Court. PERKINS, J.-Assumpsit upon the counts for work and labor, &c., in the construction of a section of the Wabash and Erie canal. The issues were, non assumpsit, and an issue upon a plea of payment. Jury trial, finding for the plaintiffs, new trial denied, and final judgment on the verdict. The evidence is upon the record, and shows that the construction of the section of the canal in question, was first let to one John Shawn; that on account of his default, the contract with him was declared forfeited, by W. J. Ball, engineer, when about one-third of the work contracted for had been performed; and that the construction of the section was completed by Bledsoe and Pigg, who brought this suit. The trustees deny that it was upon their request that the section was completed, and, hence, they insist that they are not liable to pay for it. An express request, as is well known, need not be proved. A request may be implied from circumstances. It appears in this case that the trustees, after the contract with Shawn had been annulled, were anxious for the earliest possible completion of the section, and passed an' order to that effect; that their engineer, Mr. Wilde, superintended the work done by Bledsoe and Pigg, told them, from time to time during its progress, to press on, complete the section, and that they should be paid for it; that there were from 1,800 to 2,000 dollars remaining of the estimated cost at the contract price, which should be paid to them; and it further appears that the trustees accepted and are using the section as finished. We think an assumpsit might be implied from these circumstances. But as further evidence tending to establish it, Bledsoe AND ERIE V. and Pigg offered in evidence on the trial an affidavit made May Term, 1854. in the case at a former term of the Court, by W. J. Ball, upon which the trustees asked and obtained a continuance. TRUSTEES OF THE WABASH The affidavit states that the affiant "is informed that this suit is brought to recover money for work and labor, and materials and money done and expended by Bledsoe and BLEDSOE. Pigg for the trustees, on section sixty-two of the Wabash and Erie canal. Affiant says that he is resident engineer on said canal, and has the superintendence of the construction of all its various sections; that N. R. Wilde is, and has been, a subordinate engineer to affiant, and, under him, has had the superintendence of the work of a very considerable part of said canal; that said section sixtytwo was originally let, by a written contract, to one John Shawn, who, after performing a considerable part of the work, failed to prosecute the same; that afterwards said Wilde was constituted the agent of the trustees to procure the completion of said section, and was furnished by them with money to pay for the same; that it was completed and paid for, as appears from the books of the office of engineers of said canal; that the entries in said books, so far as regards said section, were made by the clerk in the office, on the report of said Wilde. This affiant has been informed by said Wilde, that Bledsoe and Pigg, after the abandonment of said section by Shawn, made a verbal contract with him, said Wilde, as agent of the trustees, to finish said section; that they did finish it, and were paid by said Wilde the entire price for the same." The affidavit further states the inability of Wilde to attend at that term of the Court, that he is the only witness, &c. The trustees objected to the admission in evidence of this affidavit, but the objection was overruled. Had the affidavit been made by the trustees, or one of them, it can not be doubted that its statements would have been admissions binding upon them. It was made by their chief engineer, and was adopted and presented to the Court by them as containing the truth, and a continuance was obtained upon it. They thus made its statements |