
    Southwestern Railroad Company, plaintiff in error, vs. James R. Knott & Company, defendants in error.
    (Atlanta,
    January Term, 1873.)
    1. Principal and Agent — Contract by Latter for Third Party— Binds Principal — When.—If the supervisor of a railroad, who has authority to purchase cross-ties for his principal, contracts with a party for their purchase, stating to the seller that his principal wants them to lend to another railroad- to which it had promised them, and the cross-ties are furnished and put on the cars^ of the road whose agent has th'us contracted for them, such road is liable for their payment, notwithstanding the statements as to the purpose for which they were purchased be not true, and the real *fact was that the supervisor was the agent of another party in making the purchase. The seller is not affected by the truth or "falsehood of the statement.
    3. New Trial — Sufficiency of Evidence to Sustain Verdict — Case at Bar. — The questions in this case were properly submitted to the jury, and the evidence sustains the verdict.
    New trial. Principal and agent. Before Judge Harrell. Terrell Superior Court. May Term, 1872.
    James R. Knott & Company brought complaint against the Southwestern Railroad Company, upon an account for cross-ties furnished, amounting to $743 75, with interest from February 25th, 1871. The defendant pleaded the general issue.
    The following testimony, in substance, was introduced for the plaintiff :
    John A. Bishop testified as follows: Mr. Walden came to see witness about purchasing some cross-ties which plaintiffs had on hand; told him to see Mr. Russell, one of the plaintiffs; witness heard a part of the conversation between Mr. Walden and Mr. Russell, and his understanding was, that they were to go to Dawson and see Mr. Knott, and if he agreed to take the offer of twenty-five cents a piece for the cross-ties, it would be a trade. A short time after this a train came for the ties and they were delivered. Walden stated to witness as a reason why he wanted the ties, that Mr. Powers, the superintendent of defendant, had lent some ties to a railroad in Alabama, and that defendant did not have ties on its road to spare, hence defendant wished to purchase these to supply their place. He said that the ties would be paid for by the pay train of defendant when it came down in February. The contract was made in January. Mr. Walden was the supervisor of defendant and made contracts for cross-ties and other material. Witness and Russell made the sale to Mr. Walden, subject to Knott’s approval. The ties sold were sawed. Witness had been depot agent for defendant and knew ii did not use sawed ties, except at switches. Walden did not say that he was buying the ties for defendant, but witness inferred this to be the fact as Walden was the agent *and supervisor of defendant. When witness said that the ties were delivered to defendant, he meant that they were taken of by its cars. Did not hear Vischer’s name mentioned until the March after the ties were sold; Walden excused himself for not paying for the ties in February, by saying that Phelps had not returned them soon enough for the February estimate. His excuse for not paying in March was that Vischer had failed to send the money.
    Thomas A. Russell testified substantially as did Bishop, stating the following additional facts: Went to Dawson to see Mr. Knott; he approved the trade. Knew that defendant did not use sawed ties except at switches; knew that Walden was not buying the ties for the use of defendant but for a road in Alabama; thought that the defendant would pay for them; sent the bill for the ties to Walden, at Fort Valley, by the conductor; Did not usually send bills against the defendant to'the office in Macon for payment; always sent them by the conductor or gave them to an agent o.f the company. Delivered the ties to the defendant and looked to it for payment; would not have sold the ties to Mr, Vischer or to any railroad in Alabama, except for cash; had refused to let railroads in Alabama have them because they would not pay the money.
    The defendant introduced the following testimony:
    W. S. Walden testified as follows: Witness made the contract with the plaintiffs for the cross-ties. Mr. Vischer, a contractor for a railroad in Alabama, authorized witness to purchase the ties for him. The ties were shipped over defendant’s road as any other freight, and were delivered to Vischer & Company, at Opelika, Alabama. Witness is supervisor of defendant’s road and makes contracts for defendant all along its line. The ties sued for were purchased for Vischer & Company, and not for defendant; thought he so stated to plaintiffs at the time of the purchase; told plaintiffs that Vischer would send the money for the ties when the next pay train came down. The money was to have been paid in February, *between the 15th and 25th; is certain that he told plaintiffs that he was buying the ties for Vischer & Company.
    .... Vischer testified as follows: The ties were purchased by Walden, as agent for Vischer & Company; lives near Fort Valley, Georgia, and has resided there for the last twenty years.
    The jury returned a verdict for the plaintiffs for the principal and interest of the account sued on. ^hereupon the defendant moved for a new trial upon the following grounds, to-wit:
    1st. Because the verdict of the jury is contrary to the law and the evidence.
    2d. Because, the jury found contrary to the following charge of the Court, to-wit:
    “An agent can only bind his principal when acting within tlie scope of his agency. The agent must act within the authority granted to him, reasonably interpreted. If the agent exceeds his instructions, he does so at his own risk, the principal having the privilege of affiniiing or dissenting, as his interest may dictate. If you believe from the evidence that Mr. Walden was the agent or supervisor of the defendant, then he was authorized to buy-ties or material for the use of defendant, but he was not authorized as its agent to make a purchase for another company, or for any other person, unless there was express authority from the defendant to do so, and the Court charges you that the onus is on the plaintiffs, who seek to charge the defendant, to show that he had such authority. A person may be the agent of two parties at the same time. If you believe that Mr. Walden was, at the time he made this contract, acting as the agent of th'e defendant, that he bought them for the defendant, and the defendant received the ties, then it is liable. But if he was not acting for the defendant, and by its authority, at the time and in the transaction in controversy, and was acting as the agent of another person, Vischer & Company, then Viscer & Company are the parties who made the contract. They are liable to' the plaintiffs and not the defendant. You will look into the evidence *and decide this case according to 'the evidence, under the rules of law which the Court has given to you.”
    The motion was overruled, and defendant excepted upon each of the aforesaid grounds.
    W. K. DeGraeeenreid ; Lyon & Irvin, for plaintiff in error.
    Hoyre & Simmons ; C. B. Wooten, for defendants.
   Trippe, Judge.

The main question in this case is, did Walden, as agent for the Southwestern Railroad, purchase the cross-ties? -It is contended that he bought them as agent of Vischer & Company. If he informed Knott & Company of this, of course the railroad is not liable. The testimony on this point is conflicting. Walden states that he notified Knott & Company that he was buying as agent for Vischer &'Company. Russell and Bishop testify to the contrary, that Vischer’s name was not mentioned until after failure to pay. Walden was supervisor of the railroad, whose business it was to purchase cross-ties, and he was in the habit of so purchasing. It is further contended that if Walden stated to the owners of the cross-ties that they were wanted by the road to be loaned to a road in Alabama, and it was not true, the Southwestern Railroad Company was not responsible. We do not suppose one who deals with an agent who has authority from his principal to make the purchases he may be negotiating for, is affected by the truth or falsehood of the agent’s statement as to the use his principal intends to make of the articles purchased. The test is, was he the agent to make such purchase? I.n this case was Walden, the supervisor, the general agent of the road in purchasing cross-ties? There is no doubt of this from the. testimony. In fact it is not disputed. The seller was not bound to see to what use the cross-ties so purchased were applied. And if, in such a case, such a general agent were really buying for a third party, without disclosing it, and induced *the seller to part with his goods, as if they were bought for a principal known to be such, that principal is bound. The principal is bound for the fidelity of his agent.

The jury found in accordance with the testimony introduced by defendants in error. In addition to what has been stated, one of the plaintiffs testified he would not have sold the cross-ties to Vischer & Company, and that the contract with Walden was that the next month after the sale they were to be paid by the pay agent of the railroad, on the coming down of the next pay train. We do not think the verdict was unsupported by evidence, and the Judge trying the case refused to disturb it.

Judgment affirmed.  