
    The Toledo, Wabash, and Western Railroad Company v. Fisher.
    
    APPEAL from the Miami Court of Common Pleas.
    
      
       An earnest and able petition for a rehearing of this case, filed by Mr. Stuart, on the 23d of December, was afterwards overruled.
    
   Perkins, J.

Suit by Stearns Fisher against the Toledo, Wabash, and Western Railroad Company, for work done and materials furnished. Judgment for plaintiff for a fraction over 134 dollars.

The errors assigned are—

1. The refusal of a continuance.

There was no error in this. No diligence was shown.

2. The admission of proof of the declarations of one Brown.

But the proof is abundant that he was the agent of the railroad company. If not so by original appointment, he was made so by a recognition of his acts while in performance. The company saw what he was doing, and paid some of his bills. Such being the fact, his declarations, which were a part of the res gesta of his acts, within the scope of his agency, were legitimate evidence. Tomlinson v. Collett, 3 Blackf. 436.— The Wayne County, &c., Co. v. Berry, 5 Ind. R. 286, 289. And if such declarations are erroneously admitted before proof of the agency, subsequent proof of the agency were then error. The Trustees, &c. v. Bledsoe, 5 Ind. R. 133. The case does not necessarily raise a question upon the power of sub-agents.

N. O. Boss, R. P. Effinger, and W. Z. Stuart, for the appellants.

H. J. Shirk and J. M. Wilson, for the appellee.

3. Excessive damages.

. The jury allowed the account. There was evidence tending to prove it.

Per Curiam.

The judgment is affirmed with 10 per cent, damages and costs.  