
    Circuit Court for Multnomah County,
    November Term, 1869.
    M. S. McCALL v. S. E. ELLIOTT.
    Burden oe Prooe. — Agent must Disclose Agency.. — If tlie defendant pleads that he made the contract as agent of another, and not as principal, and issue is joined, it devolves on the defendant to show that he . so contracted, and that the plaintiff had notice of the agency.
    The plaintiff sues for the value of work and labor done by him, as civil engineer.
    The answer is to the effect that the work was done for the Oregon and California K. It. Co., andnotfor the defendant; and that the plaintiff agreed to do the labor for such instructions in the art as should be imparted to him in the course of the work.
    The replication denies the allegations of the answer; and the cause was tried by jury.
    The plaintiff proved that the work was worth $50 per month.
    The defendant proved that the citizens of Marysville, California, in the year 1863 raised money by subscription, and placed it in the hands of the defendant to meet the expenses of a preliminary survey of the route since known as the line of the Oregon and California Railway. That with a corps of engineers and assistants, of whom the plaintiff was one, the defendant surveyed the said line from Marysville to Oregon. That the plaintiff was then learning the business of a civil engineer. The evidence was conflicting as to whether the parties made a special agreement as to the mode of compensation, and as to whether it was understood by the plaintiff that all parties engaged in the work would rely upon subscriptions for compensation, or upon a company that was then being organized.
   Upton, J.

instructed the jury that the burden of proof was on the defendant to show that he contracted as agent for others in employing the plaintiff, and that the plaintiff had notice of such agency; and that the plaintiff was entitled to a verdict, unless the proof either showed such agency and sucb knowledge on tbe part of the plaintiff of the defendant’s being agent, or established the making of the special contract as to the mode of compensation, which is set forth in the answer.

The plaintiff had a verdict.  