case, but with the facts more in favor of appellant's position than this case, is Rawson v. Holland, 59 N. Y. 611. The carrier at New York received goods marked "Day & Lathrop, Dryden, Michigan, via Ridgeway," but contracted to carry only to Detroit. The goods were carried to the terminus of the line, Detroit,-were not forwarded or offered for carriage to any line by which they could reach their destination,were stored and burned. In a very able and carefully written opinion by Andrews, J., the carrier was held liable for their value. See also, Judson v. Western R. R. Co., 4 Allen (Mass.) 520; Grindle v. Eastern Ex. Co., 67 Me. 317.

The contract entered into and receipt given for the goods. contains the following: "To be forwarded to its agency nearest or most convenient to destination only, and there delivered to other parties to complete the transportation." There is no mistaking this language, or the duties assumed by it.

There was some evidence introduced to show that it was the custom of the express company to stop all goods at Durango marked "Rico, via Durango." This custom or usage could not in any way affect appellee. It is a general rule that a local usage must be shown to have been known to the party before he will be bound by it. No proof of such knowledge was attempted. Under the case made, appellee was clearly entitled to damages for the detention and failure of appellant to perform its contract.

Appellee testified that he lost upon the goods in re-selling, by reason of the detention, $8; that he was detained in Rico seven days while waiting for the goods, and (over an objection) that his time was worth $12.69 per day. It was error to allow evidence of the loss of time and its value per day. The charge of the court upon the same point was erroneous. It is not a damage resulting from the failure to perform,―is too remote and consequential to be considered,one not contemplated by either party in entering into the contract. See Ang. on Carriers, § 490; Browne on Carriers, § 685; Sedg. on Dam. § 856; Woodger v. Great West. R. R.,

-

L. R. 2 C. P. 318; British Col. Saw Mill Co. v. Nettleship, 3 L. R. C. P. 499; Corry v. Thames Iron Works Co., 3 L. R. G. B. 181.

An improper rule for the measure of damages having been adopted, the judgment must be reversed.

Reversed.

JOHN C. HOLMES, APPELLANT, V. ELMER E. GRIFFITH, APPELLEE.

1. PRINCIPAL AND AGENT-CONTRACTS BY AGENT.-A duly constituted agent, who within the scope of his authority contracts in the name of his principal, incurs thereby no personal liability. It is only when he contracts in his own name, or incurs a personal responsibility, express or implied, that a personal obligation is incurred.

2. AUTHORITY OF SUPERINTENDENT OF MINING CORPORATION.-The foreman of a mining and milling company employed a man to work about the company's mines. The superintendent changed the character of the employment, by directing him to drive a team used by the company in hauling ore and wood to its mill, but the foreman was instructed to keep his time the same as that of other employees. The mere act of changing the character of the employment from one kind of work to another, both classes of work being prosecuted by and for the company exclusively, gave the employee no claim for compensation against the superintendent individually.

Appeal from County Court of Clear Creek County.

Mr. A. D. BULLIS, for appellant.

Mr. C. C. POST, for appellee.

REED, J. This was a suit brought to recover wages for services of appellee as a teamster. No question was made as to the extent of the services or the amount of compensa

tion due. The only question for determination was for whom the services were rendered-who owed the debt.

Appellant was superintendent of The Humboldt Mining & Milling Company, which it appears was actually engaged in mining and milling; was also superintendent of The Cleveland Mining & Milling Company, which was not prosecuting any work. It was shown by the evidence that appellant was not engaged in any work individually; that John W. Comer was the foreman of The Humboldt Consolidated Mining & Milling Company. The team driven by appellee was not the property of the Mining & Milling Company,― was employed and controlled by the company previous to the employment of appellee; that appellee was employed by Comer on the 17th day of February to work about the mine; that he worked a day and a half. He was then told by the appellant to drive the team. He was not told, nor did he ask for whom it was to be driven. Comer was instructed to and did keep his time the same as that of any other employee. The team was used in hauling ore and wood to the mill of the company after appellant's employment, the same as before. It was in evidence that the company was to furnish the driver for the team, and that appellee was employed and kept the same as other employees. Appellee was not paid, and brought suit against the company and appellant. The court gave him a judgment against appellant, individually, for $102.12 and costs, amounting to $76.05.

The court erred in rendering a judgment against the appellant; there was no evidence whatever upon which it could be predicated, and must have been the result of a misconception of the law.

It is a general rule of law, "That when an agent is duly constituted, and names his principal and contracts in his name, the principal is responsible and not the agent." 2 Kent's Com. 629-30; Story on Agency, § 261.

"A person contracting as agent will only be personally liable where he makes the contract in his own name, or vol

untarily incurs a personal responsibility, either express or implied. 2 Kent's Com. 630; Story on Agency, § 269.

In this case the employment was by the foreman of the company for the company, and was so known to appellee. The only act of appellant shown was the changing the character of the employment from mining to driving the team. There is no evidence of any personal responsibility having been incurred.

The judgment must be reversed and cause remanded.

Reversed.

THE PAWNEE LAND & CANAL CO., APPELLANT, V. WILLIAM S. JENKINS, APPELLEE.

1. INTERFERENCE WITH FINDINGS OF COURTS AND JURIES.-It is the settled practice of appellate tribunals not to interfere to set aside the finding of a trial court or jury when the questions determined thereby are purely questions of fact, unless the finding is so manifestly unjust as to carry conviction that it was the result of bias or prejudice. This rule obtains in case of a conflict of testimony if there is sufficient evidence to support the finding, although the appellate court may be of opinion that it would have found differently on the evidence.

2. LIABILITY OF DITCH COMPANY ON CONTRACT TO FURNISH WATER.— A ditch company that contracts with a patron to furnish him water for irrigation, and fails to comply with its contract, by reason whereof the patron suffers damages in the loss of crops, is not relieved from liability to damages by the mere fact of a scarcity of water in the stream from which the ditch was supplied, if by the diligent employment of proper measures to utilize the water that was in the stream the catastrophe might have been averted. The company can only be exonerated on proof of circumstances clearly showing that the failure to perform was chargeable to vis major, and not to negligence and inattention.

Appeal from County Court of Logan County.

Messrs. SHERIDAN & SHORT, for appellant.

REED, J. The appellant is a corporation owning a ditch for the purpose of carrying and delivering water for irrigation, known as the Pawnee Ditch. Appellee was the owner of eighty acres of land under the ditch, and dependent upon it for water. His right to water was by virtue of a purchase from appellant of a right to water to be delivered annually during the irrigating season, supposed to be sufficient to irrigate eighty acres. It is alleged in the complaint that in the summer of 1890 appellant failed and neglected to keep its ditch in good order and condition, failed to furnish appellee the water to which he was entitled,-failed to keep a superintendent on the ditch for the purpose of supplying water. That by gross carelessness and negligence of the ditch company in the management of the ditch, and its failure to supply the water necessary to irrigate his crop of that season, the crop was injured and lost, damaging him $500.

The defendant specifically denied each allegation of the complaint. Trial was had to the court. The issues were found for the plaintiff. The finding was special, that the corporation was careless and negligent and the ditch mismanaged, and that as the result of such neglect and mismanagement appellee's crop was injured, damaging him in the sum of $350, and costs, for which a judgment was entered, from which an appeal was taken to this court.

There is no question of law involved. Appellant contends that the finding was against the weight and preponderance of the evidence. The evidence was conflicting and contradictory. Appellant introduced testimony to show that the failure resulted from scarcity of water in the river from which the ditch was taken, and not from negligence and inattention. Appellee's testimony tended to prove specific acts of negligence, carelessness and mismanagement, notably of a failure of the corporation to put in and maintain a proper dam across the river at the head of the ditch, to stop the water and turn it into the ditch; also of a total neglect to repair a flume on the ditch that had given way or broken down.