
    M. P. R’y Co. v. R. L. Turner.
    (No. 3401.)
    Appeal from Tarrant County.
   Opinion by

Delaney, J.

. §815. Superintendent of railroad; authority of, to hind company; authority of, cannot he disputed, when; contract not within statute of frauds; excessive judgment; case stated. At the request of appellant’s superintendent, appellee, who was an undertaker at Port Worth, furnished a burial casket, etc., and prepared the dead body of one Cole for burial, etc. Cole was an employee of appellant who had been injured and died in its service, and the usage and custom of appellant was to provide for the burial of employees killed while in its service. Appellee had filled such orders for appellant on previous occasions and received pay therefor. At the instance of said superintendent, appellee drew a check upon the brother of deceased for the amount due for the casket, etc., which check was protested. Appellee brought this suit to recover $258, the amount alleged to be due him for said casket, etc. He recovered judgment for $285, and costs. Held: 1. The superintendent of appellant had authority to bind appellant for the debt sued for. [W. & W. Con. Rep. § 392.] Similar orders had been filled by appellee upon contracts made by its superintendent, and the services had been paid for by appellant. It is therefore too late to dispute the authority of the superintendent. [Tex. & Pac. R’y Co. v. Nicholson, 61 Tex. 491.] 2. The contract was not within the statute of frauds. The credit was not given to Cole, the brother of the deceased, but to appellant upon the order of its agent. Indeed, the casket, etc., had been furnished and work done by appellee before he knew of the existence of said brother of deceased. And although the superintendent, for some purpose of his own, directed appellee to draw upon said Cole for the debt, which was done, that did not change the character of the contract. [3 Pars. Con. 24.] 3. The judgment is excessive. Appellee claimed only $258 in his petition, and could not recover beyond this amount. The judgment is reversed and rendered for the proper amount.

May 13, 1885.

Reversed and rendered.  