
    Albert Butler v. The Michigan Central Railroad Company.
    
      Railroad company — Purchasing agent — Order for timber — Right to transfer same must be shown — Station agent — Authority of — Evidence.
    Defendant’s purchasing agent ordered a quantity of square timber of a firm at Mason, Michigan, to be shipped to its car shops at Spring-wells. The firm being unable to fill the order, one of the members called upon plaintiff and informed him of the fact, and stated to him that defendant wanted the timber immediately, and if his firm could not furnish it, they were authorized by defendant to get some one else to do so. Plaintiff thereupon delivered the timber to defendant’s station agent at Mason, who had no authority from defendant to purchase or contract for same, but who billed the timber to defendant at Detroit in the name of plaintiff, as consignor. A voucher was forwarded to the agent in favor of said firm, who paid litem the money, but they never paid plaintiff.
    
      IMd, in an action-of assumpsit brought by plaintiff against the defendant for the value of the timber, that the station agent had no power to hind his company for payment for the timber, and the authority of the firm to transfer the order to plaintiff not appearing, the testimony of the co-partner in that regard was improperly received.
    Error to Ingham. (Gridley, J.)
    Argued February 5, 1886.
    Decided February 10, 1886.
    Assumpsit. Defendant brings error.
    Reversed.
    The facts are stated in the opinion.
    
      M. V. & R. A. Montgomery, for appellant:
    There is no pretense of an express contract for the purchase of the timber of plaintiff, and the facts preclude an implied one. Express and implied contracts do not differ in nature, but in the mode of substantiation ; and neither can arise unless the parties sustain contract relations, and are in privity with each other: Woods v. Ayres, 39 Mich. 345.
    
      A. B. Ilaynes, & Huntington & Henderson, for plaintiff:
    The timber was not shipped or furnished upon the credit of Keeler & Dunning, hence the transaction is the ordinary one of goods sold and delivered by the plaintiff to the defendant. While it may be true that the timber was not ordered by defendant of plaintiff, or delivered at its request, it was received, accepted, and used by defendant, and from these facts the law implies a promise to pay what the timber is reasonably worth: Addison on Contracts, vol. 2, § 583.
   Sherwood, J.

In this case, the record shows that the purchasing agent of the Michigan Contra! Railroad Company, Allen Bourn, sent to Keeler & Dunning, at Mason, Michigan, an order for a quantity of square timber. Keeler & Dunning being unable to fill the order, Mr. Dunning called upon the plaintiff, and told him they were out of the business, and could not fill the order, and Mr. Butler swears Dunning told him the company wanted the timber immediately, and if “ they [Keeler & Dunning] could not furnish the timber, to get some one else to do so.”

Butler delivered the timber to the defendant’s station agent at Mason, for shipment, who had no authority to purchase or contract for it; but lie did bill it to Detroit in the name of Butler as consignor. The order was given to Keeler & Dunning, and a vouchor was made out running to them and forwarded to the station agent at Mason, who paid for the timber to them, and they receipted the voucher, but have never paid Butler the money. Neither does it appear that Butler ever called upon them for the money. He now sues the company for the value of the timber, in assumpsit, and was allowed to recover against the defendant at the circuit, upon what he claims as an implied liability.

We think this recovery, under the circumstances, was wrong. The station agent had no power or authority to bind the company for payment, and the testimony that Keeler & Dunning informed the plaintiff that the company wished him to fill the order, was improperly received, it not appearing that he had any authority so to do. The company had the right to rely upon the order it had given in making payment, and the judgment must be reversed, with costs, and a new trial granted.

Campbell, C. «T. and Morse, J., concurred.

Champlin, J. I concur in the result.  