
    GOTTLIEB KANNE v. MINNEAPOLIS & ST. LOUIS RAILROAD COMPANY.
    
    May 22, 1908.
    Nos. 15,647—(141).
    V erdict — Evidence.
    Evidence considered, and held, that it is sufficient to sustain the verdict in favor of the plaintiff herein.
    Action in the district court for Waseca county to recover $375, the agreed amount of damages to plaintiff’s land caused by failure to construct and maintain a culvert. The case was tried before Buckham, J., and a jury which returned a verdict in favor of plaintiff for $407. From an order denying its motion for judgment notwithstanding the verdict or for a new trial, defendant appealed.
    Affirmed.
    
      H. J. Peck and P. McGovern, for appellant.
    
      Prancis Cadwell and John J. Isker, for respondent.
    
      
       Reported in 116 N. W. 470.
    
   START, C. J.

This action was brought in the district court of the county of Waseca to recover from the defendant the sum of $375 upon an alleged settlement of the plaintiff’s claim for damages which he had sustained by reason of the flooding of his land by the defendant, which was due to an insufficient culvert across its right of way. The answer denied the alleged settlement. Verdict for the plaintiff for the amount claimed, and the defendant appealed from an order denying its motion for judgment or a new trial.

The only question presented for our decision by the record is whether there was any evidence to sustain the verdict. The evidence on the part of the plaintiff tended to show that he had been damaged as claimed and that the parties entered into an agreement, the defendant being represented by its assistant claim agent, whereby the claim for unliquidated damages was settled for $375, which the defendant promised to pay. The evidence on the part of the defendant tended to show that no unconditional settlement was ever made; that the matter was only settled upon condition that the plaintiff would execute a written contract, with reference to a new culvert, the terms of which were agreed upon; and, further, that the plaintiff subsequently refused to execute the written contract. The issue whether the settlement was absolute or conditional was submitted to the jury, and their finding on this issue cannot be disturbed, for the testimony of the plaintiff and the claim agent as to the contract was radically conflicting.

The defendant further claims that its claim agent had no authority to make any unconditional settlement of the matter. The evidence was sufficient-'to justify a finding by the jury that the plaintiff had no knowledge of any limitation on the authority of the claim agent in making the settlement, and that his acts in the premises were within the apparent scope of his authority. Upon consideration of the evidence, we hold that it is sufficient to sustain the verdict as to both claims made by the defendant.

Order affirmed.  