M. C. Conley, Ex'r, v. Columbus Tap Railway Company, 44 Tex. 579

Ireland, Associate Justice. There is no appearance in this court for appellee, and we are not informed upon what ground the demurrer to the petition was sustained. There was nothing, so far as we can ascertain from the record before us, by which the court could determine that the Columbus Tap Railway Company, through its agent, could not make a contract or incur liabilities beyond $250 without express authority. A demurrer to a petition could only be sustained because of some defect appearing in the petition, and not because of any matter set out in the demurrer.

There is a cause of action set out, and the matters alleged in the special exceptions were matters that could only be made available by proof. Railway charters are generally treated as private acts, of which courts do not take judicial notice, and if the charter in question was. an exception to the general rule, it should have been shown. The court erred in sustaining the demurrer to plaintiff’s petition.

After the demurrer was sustained there was nothing before the court to admit testimony upon, and it will suffice to remark in regard to the bill of exceptions that there was no error in sustaining objections to testimony after the case was dismissed. But the reason given for sustaining the objections, as we learn from the record, was, that it was oral. If there had been any pleadings to admit the testimony, the reasons assigned would not have been tenable. There was no evidence before the court, so far as we learn, of the existence of any higher grade of testimony than that offered.

It is alleged that the Columbus Tap Railway Company got appellant’s boat and tackle under the contract made with Whitfield, and we do not believe that our laws are impotent, and that there is no relief. When the case goes back, as it must, the appellant will have an opportunity of amending his pleadings, and he may show, if he can, that the Columbus Tap Railway Company ratified the contract, or that Whitfield had authority before he made it. If the company received the property under the contract, and used it, it would be very strong proof of a ratification.

A principal must adopt or reject the act of its agent as an entirety. (Hilliard on Contracts, pp. 616, 617, 618.) So in regard to the sale of the property of a railway corporation. (Walmouth v. Farmers, 16 Wis., 629.) If the company received the property acquired through the contract made by Whitfield, it would be estopped from denying their liability therefor. (Herman on Estoppel, p. 511; 34 N. Y., 30.) The plaintiff, under proper pleadings, might recover on a quantum meruit. For the errors indicated, the judgment is reversed and the cause remanded. Reversed and remanded.