fore us proved negligence on the part of the appellant. If the complaint can be said to charge negligence only in the omission of the statutory signals, the evidence does not sustain the complaint. Counsel for the appellee in argument contend that the complaint not only alleges the omission of the statutory signals, but also charges that no warning of any kind was given to indicate the approach of the train. The complaint alleges" that the said train was backed towards and over said crossing, and that the defendant negligently and carelessly omitted while so approaching said crossing to give any signal by bell or whistle or otherwise." If such an effect can be given to the language of the complaint, it can be said properly that the evidence tended to sustain its substantial averments upon the theory thus suggested, yet it appears from the record that the cause was disposed of in the court below upon the theory that the action was based upon the negligent omission of the statutory signals alone. In its instructions to the jury, to which the appellant excepted, and upon the giving of which the motion for a new trial was based in part, the court, in effect, instructed that the only negligence charged against the appellant in the complaint was its failure to give the statutory signals, and that if the evidence showed that they were not given as required by law, the appellee's charge of negligence against the appellant was made out. Therefore it cannot be concluded that the jury reached the verdict given by reason of having found that the appellant was chargeable with some other negligence. We are of the opinion that there should be a new trial. The judgment is reversed. Foss-SCHNEIDER BREWING CO. V. Mc- (Appellate Court of Indiana. Sept. 15, 1892.) PRINCIPAL AND AGENT-EVIDENCE-PROVINCE OF JURY-INSTRUCTIONS-CROSS-EXAMINATION. 1. Defendant company gave to another the "sole right" to control the sale of its goods in a certain city, furnished him with a delivery wagon, and built him an ice house. On the ice house and wagon the defendant either had painted its corporate name, and that of the other as agent, or, after the same had been painted, permitted it to remain. Held, that there was a holding out of such person as agent of defendant, and one acting in good faith had a right to deal with him as such. 2. Whether the company caused the house and wagon to be so painted, or permitted the same to be done, is a question of fact for the jury. 3. In an action against a company for the price of goods sold to its alleged agent, evidence that plaintiff asked the alleged agent if he was the agent of the company, and that he replied that he was, is admissible to show the good faith of plaintiff in dealing with such alleged agent. 4. It is not error to give an instruction in illustration of certain points, though the facts therein embraced are not pertinent to the issue. 5. Where a letter, identified by a witness, is to be put in evidence, a cross-examination of the witness, based on the letter, is proper before it is put in evidence. Appeal from superior court, Vigo county; C. F. MCNUTT, Judge. 'Rehearing pending. Action by Dean McLaughlin and others against the Foss-Schneider Brewing Company on account. Judgment for plaintiffs. Defendant appeals. Affirmed. Stinson & Stinson and Alvin M. Higgins, for appellant. McNutt & McNutt, for appellees. This Fox, J. This was an action brought by appellees against the appellant before a justice of the peace upon account, and, the appellant being a foreign corporation, a summons was served upon one Louis Heyden, who, it was claimed, was an agent of the appellant. A judgment was rendered in favor of the appellees. From this judgment an appeal was taken to the Vigo superior court, where another trial was had, with a like result. There is but one error assigned in the record, and that is that the court below erred in overruling the appellant's motion for a new trial. Counsel for appellant say in their brief that "error of the court in the oral instruction and in the admission of evidence is the ground upon which the appellant relies for the reversal of this case." will be taken as a waiver of all other questions presented in the record. Briefly stated, the facts of the case as they appear in the record are as follows: The appellant is a corporation engaged in manufacturing beer in the city of Cincin nati, to be sold in the markets of the country. The company gave to one Louis Heyden the "sole right" to control the sale of their beer in the city of Terre Haute, in the state of Indiana. In so doing they agreed to build him an ice house in Terre Haute, in which to store the beer as he received it; and also to furnish him with a wagon, horse, and harness for the purpose of delivering beer to customers. There was evidence tending to show that, after the ice bouse was built, the words, "Foss-Schneider Brewing Co. Louis Heyden, Agent," were conspicuously painted in large letters upon three sides of it. A delivery wagon was made in Cincinnati, and was by the appellant sent to Heyden, at Terre Haute. Upon each side of the wagon was painted the words, "FossSchneider Brewing Co." Evidence was also given tending to show that the words," Louis Heyden, Agent," were painted upon the ends and back of the seat of the wagon. Heyden took possession and had control of both the ice house and the wagon, and used the same in placing beer manufactured by the appellant upon the market. While Heyden was so engaged, the appellees delivered ice to him, to be used in connection with said business. Heyden having failed to pay for the ice, suit was brought against the appellant upon the theory that Heyden was their Ostensible agent, and, as such, received the ice. Evidence was also given at the trial that while Heyden was engaged in handling the beer, and was in possession of the ice house and wagon, they inquired of him whether he was agent for the appellant, and that he said he was. The appellant at the trial denied that Heyden was its agent, and claimed that the beer was sold to him outright by car loads; that it did not authorize Heyden or any one else to place his name as agent upon either the house or wagon; that they did not know the words were there. The court instructed the jury that, if they believed from the evidence that the brewing company caused a wagon to be painted with the corporate name, "Foss-Schneider Brewing Co.," on both sides of it, and caused Heyden's name as agent to be painted upon it in a conspicuous place, where it could be seen and read, and permitted Heyden to use it in the public streets of Terre Haute or elsewhere, this would "be a holding of Louis Heyden out as an agent," and that a person acting in good faith would have a right to deal with him as such. The court further instructed the jury that if "the brewing company authorized Hey. den to erect a house for them with their money, and, he having done so, for the purpose of selling their beer, or keeping their beer in, which they should sell to him, and afterwards placed or printed in large letters upon the side of the company's house the names, 'Foss-Schneider Brewing Co. Louis Heyden, Agent,' and that fact came to the knowledge of the defendant, and nothing was done to prevent him from still allowing that sign there where the public could see it, that would be a holding out of him as their agent. The court than instructed the jury that as to whether the brewing company caused the house and wagon to be lettered as above mentioned, or permitted the same to be done, were questions of fact to be determined by them from the evidence. Counsel contend that the above instruction is not a correct exposition of the law. An agency will at times be implied from circumstances, in order to protect the right of innocent parties, even where no contract of agency in fact exists. The law. upon this question is well stated in Me. chem, Ag. § 84. It is there said: "It may therefore be stated as a general rule that whenever a person has held out another as his agent, authorized bim to act for him in a given capacity, or has knowingly and without dissent permitted such other to act as his agent in such capacity, or where his habits and course of dealing have been such as to reasonably warrant the presumption that such other was his agent, and authorized to act in that capacity, whether it be in a single transaction or in a series of transactions, bis authority to such other to act for him in that capacity will be conclusively presumed, so far as it may be necessary to protect the rights of third persons who have relied thereon in good faith, and in the exercise of reasonable prudence; and he will not be permitted to deny that such other was his agent, authorized to do the act that he assumed to do, provided that such act is within the real or appareat scope of the presumed authority." If it is true that at the time the ice was delivered to Heyden he had the sole right and was engaged in placing beer manufactured by the appellant upon the market in Terre Haute; that upon the house owned by appellant, in which the beer was kept before being delivered to customers, he caused his name to be con spicuously painted as agent of the appel lant, of which fact the appellant had, or should have had, knowledge, and the appellees, knowing and relying upon what was thus publicly announced, and believing it to be true, in good faith dealt with Heyden as the agent of the appellant,-the law will protect them, and not permit the appellant to deny the relation. The rule that where, under circumstances and conditions, one of two persons must suffer, the one who made the circumstances and conditions possible must be held responsible, is a just and salutary one. That the appellees acted in good faith is shown by the fact that they made inquiry of Heyden, while he was in possession of the house and wagon, as to whether he was in fact agent or not. Counsel insist that the court should not have permitted the question to be answered. Ordinarily, the rule is that the fact of agency cannot be proven by the declarations of the agent, in the absence of the principal. This evidence, however, under the circumstances, was properly admitted in order to show the good faith of the appellees in the premises, to show that they made proper and prudent inquiries before dealing with the person of whom the inquiry was made, and who at the time had in his possession the house and wagon, lettered, as appellees claim, as above mentioned, and was engaged in selling goods manufactured by the appellant. The In connection with the doctrine of implied agency the court stated to the jury that, "where one holds another out to the public as agent, so that if you and I have a contract that you are not to act as my agent, but, notwithstanding that, I hold you out as my agent, or if I know you are holding yourself out to the public as my agent, your act binds me just as much as if I had in the first instance agreed to make you my agent." This portion of the charge, together with that immediately preceding, is objected to for the reason that it is not pertinent to the evidence. In this instruction the court simply endeavored to illustrate the distinction between agencies created by contract and those implied from circumstances. court did not assume or pretend that all the legal propositions stated or illustrations given by him were pertinent to the matters in issue, and the jury could not have intelligently so understood. purpose was to, in a general way, illustrate the theory and doctrine of the law of agency for the information of the jury. Counsel discuss at length and cite many authorities concerning the doctrine of ratification as applied to the law of agency. The question of ratification is not involved in this case. The pivotal question is this: Were the facts and circumstances within the knowledge of the appellees, for which the appellant was responsible, sufficient to induce them, as prudent men, to believe, in good faith, that they were dealing with Heyden as the agent of the appellant? No pretense is made that there was any subsequent ratification of the acts of Heyden after the ice was delivered by the appellees. It is insisted that the court erred in permitting the appellee McLaughlin to give his opinion as to The was DAVIS V. SCHMIDT.1 (Appellate Court of Indiana. Sept. 15, 1892.) ADMINISTRATORS -ACTIONS AGAINST — CONTRACTS OF MARRIED WOMEN-SPECIAL VERDICT. 1. Where an administrator unlawfully ob tains possession of personal property, and retains the same as part of his decedent's estate, an action for the recovery of the property cannot be brought against him in his representative capacity. 2. A woman offered to leave her property to her niece if the niece would live with her as a companion and assistant. Soon after, the woman married. Several years later the niece accepted the offer, and lived with the woman eight years. The woman died without making any provision for the niece. Held, that the contract was void, because made and performed during coverture, and a promise, made after coverture, to pay for such services, could not be enforced unless it was supported by a valuable consideration. 3. Where facts necessary for a recovery are not stated in a special verdict, they cannot be presumed as so found, but must be regarded as found against such recovery. Appeal from circuit court, Howard county; DAN WAUGH, Judge. Action by Augusta Schmidt against Henry C. Davis, administrator. Judgment for plaintiff. Defendant appeals. Reversed. McConnell & Jenkins and Bell & Purdum, for appellant. Winfield & Nelson, for ap. pellee. whether Heyden was the agent of the appellant or not. The record does not show that any such testimony given. The witness was asked to give his opinion as to the agency" from what he had seen and heard, but all the questions calling for such an opinion were objected to, and not answered. The witness was asked to state, if seeing the words above mentioned, as they were painted upon the ice house, in any wise influenced his conduct in delivering the ice to Heyden. This question he answered as follows: "It had all in the world to do with it. I would not have sold him one hundred pounds of ice if I did not think he was agent. Το this question and answer no objection was made at the trial, and, this being so, none will be considered here. During the progress of the trial the appellant called Heyden as a witness, and, placing a letter in his hands, asked him if it contained "the terms of his contract with Foss, Schneider & Co." He answered that it did. Thereupon, and before the letter was read in evidence, counsel for appellees proceeded to cross-examine the witness concerning the building of the ice house, and as to whether he built it by the authority of the appellant. To this appellant's counsel objected for the reason that it was not proper cross-examination. The court, before ruling upon the objection thus made, "asked defendant's counsel if he meant to offer in evidence the letter shown witness," to which question the counsel answered "that he should put the letter in evidence." The court then overruled the objection, and permitted the counsel for appellees to proceed with the cross-examination, which they did at length concerning the house and wagon, and as to the words painted thereon, for the purpose of showing, as it appears, that, notwithstanding the letter and the terms of the contract contained therein, witness, by his conduct, had held himself out to the world as the ostensible agent of the appellant. The letter was subse-consisting of two separate parts or paraquently read in evidence by the appellant's counsel, in order to show by its contents that Heyden was not in fact the agent of the appellant, but that beer furnished him was sold by him outright, and that he, from the time he received it, became the absolute owner thereof. If the letter had been read in evidence, in connection with the testimony of the witness, at the time he testified, there is no question but that the cross-examination would have been proper. The fact that the letter was subsequently read in evidence made the testimony elicited by the cross-examination competent at some stage of the trial. This being so, we are unable to see how the appellant was injured by the action of the court. Counsel, in their brief, say that Heyden "was a hostile witness. We see no evidence of this in the record. The order in which testimony may be given is so largely in the discretion of the trial court that ob. jection to it will not arise upon appeal unless such discretion is manifestly abused. We see no evidence of that abuse in this case. Judgment is affirmed, with costs. BLACK, J. This was a claim against a decedent's estate. The statement of the claim consisted of three paragraphs of complaint, with an affidavit of the claimant attached, verifying the allegations of the complaint. The appellant demurred to each paragraph, and the demurrer was sustained as to the third paragraph, and was overruled as to the first and second paragraphs. The errors assigned upon these rulings adverse to the appellant are waived by his failure to discuss them. No answer was filed. The cause was tried by jury, and a special verdict was returned, graphs, each signed by the foreman, one upon the first paragraph of the claim, the other upon the second paragraph thereof. The appellant's motion for judgment in his favor, and for costs upon the special verdict, and upon each paragraph thereof separately and severally, was overruled, and upon the appellee's motion judgment was rendered for her upon the special verdict. In the first paragraph of the statement of claim the appellee, complaining of the appellant "as administrator," showed the death of his intestate, Christina Hooper, in Howard county, Ind., in 1889, and alleged, in substance, that while living she had a tin box, containing certain notes and mortgages, described, amounting to $3,833.92; a certificate of bank stock, described, for $5,000; the sum of $254.80 in money; a gold watch, and other jewelry not otherwise described, the value of which was not stated; and "other papers and documents, "—which she gave to the appellee. That at the same time she gave to the appellee certain other articles of personal property described, of the value of $500. That the appellee was the niece of 1Rehearing pending. the intestate. That at her request the ap pellee left her home in Germany, and made her home with the intestate for eight years, doing all kinds of work, and rendering various services for her. That the intestate, before her death, gave said tin box with said contents to the appellee, and delivered the same to her, whereby the same became the absolute property of the appellee. That after the death of the intestate, "the defendant and administrator" unlawfully obtained possession of said tin box and said contents," and still retains the same, without right, in said county, “and refuses to deliver the same to" the appellee. "That the same is of the value of ten thousand dollars. Wherefore this plaintiff demands judgment that she be the owner of said tin box and said contents, and she recover the same, and, in default of the recovery of said property, if return cannot be had, that she recover judgment against the estate in the sum of ten thousand dollars." It was further alleged that the claim was justly due and owing the appellee, and that there were no set-offs or counterclaims thereto. In the second paragraph of the statement of claim it was alleged, in substance, that in the year 1869 the appellee lived with her mother in Germany, having there a pleasant and comfortable home and home comforts, and there moved in good society, and had good prospects for the future, and of contracting a suitable marriage and settlement in life; that she was then about 18 years of age; that at that time the intestate, who was the appellee's aunt, and who lived in Kokomo, Ind., being herself childless, desired and requested that the appellee leave her home in Germany, and come to the intestate in America, and be a companion and assistant to her; that in consideration of the appellee's so leaving her home in Germany, and sacrificing all her prospects there, crossing the ocean, and coming to America, to be the intestate's companion and assistant, as aforesaid, until the appellee should marry, the intestate promised to the appellee that the intestate would compensate the appellee for her services and sacrifices aforesaid, by devising and giving to the appellee, at the intestate's death, all her property, real and personal; that the intestate was the owner in her own right of property of the value of $60,000; that, in accordance with the request of the intestate, the appellee accepted said proposition, and, relying upon the intestate's promises of compensation, as aforesaid, left her home in Germany, sacrificing her prospects there, and came to America, and, in pursuance of said agreement, worked and labored for the intestate, assisted her in and about her household, waited upon her in sickness, and filled the place of a companion to her continuously for the period of eight years, until she married, with the intestate's consent, the appellee's present husband named; that the intestate died suddenly and unexpectedly on the day of October, 1889, without conveying or devising to the appellee the intestate's property in accordance with her promise to compensate the appellee for her services and sacrifices as aforesaid, as she fully intended to do, but which she was prevented from doing by her sudden and unexpected decease; that she died in the appellee's absence; that during said eight years of service for the intestate she repeatedly renewed and reiterated said promise to compensate the appellee for her services and sacrifices as aforesaid; that the services rendered to the intestate as aforesaid "are of the value of fifty thousand dollars, all of which is past due and wholly unpaid;" that there are no offsets or counterclaims thereto in favor of the appellant or the intestate against the appellee; "wherefore she demands judgment against the defendant for fifty thousand dollars, and all other proper relief." In the first paragraph of the special verdict the jury found the facts upon the first paragraph of the complaint. It was found that Christina Hooper died intestate in Howard county, Ind., October 4, 1889; that at or about the time of her death she was the owner of the tin box and its contents, described in the complaint; that the box, at the time of her death, contained certain personal property described, being the notes and mortgages and the certificate of bank stock described in the complaint, and that the box and its contents were of the value of $8,833.92, together with the accrued interest upon the notes and mortgages, and the dividends upon the bank stock. The jury at considerable length set out a state of facts which, under the view we take of this branch of the cause, need not be here set forth. It is contended on behalf of the appellee that these facts constituted a donatio causa mortis to her of the box and its contents. On behalf of the appellant it is contended that the facts found were not sufficient to constitute such a gift, and that the appellant was entitled to the possession of the box and its contents as assets of the decedent's estate. It was further found that after the death of the intestate, the box and its contents having been placed by the appellee in the possession of one Wilcox for safe-keeping, "the defendant, Henry C. Davis, without the appellee's knowledge or consent, obtained possession of the box and its contents from said Wilcox, and without the appellee's knowledge or consent inventoried the same as a part of the assets of the decedent's estate," and that "said Davis now claims the same as the administrator of the decedent's estate." This paragraph of the verdict concludes as follows: "If the law is with the plaintiff, we, the jury, find for the plaintiff that she was at the commencement of this suit, and is now, the owner of the personak property herein described, and was at the commencement of this suit, and is now, entitled to the possession thereof, and that the same is unlawfully detained from the plaintiff by the defendant, in Howard county, Indiana. If the law is with the defendant, we find for the defendant." In the second paragraph of the verdict the jury found as the facts upon the second paragraph of the complaint, in substance, that before the month of May, 1860, the decedent was a widow, and childless, in prosperous circumstances, resid Ing in Montgomery, Ala.; that the appellee was her niece, and resided with her mother in Germany; that the decedent was the appellee's godmother; that the appellee had a good home and good prospects in Germany; that on the 9th of January, (the year not being stated,) and before the decedent's marriage with Wal ter Hooper, she wrote a letter to the appellee's mother in Germany, that if she would send to her her goddaughter, Augusta, the appellee, the decedent would educate her well, and would give her all her property upon her death; that afterwards, in July, 1860, the decedent married Walter Hooper, and moved to Kokomo, Ind., where they continued to reside until said Walter's death in 1885; that in the spring of 1869, the appellee, who was then about 18 years of age, relying upon the promise of the decedent, left her home in Germany, and came to the home of the decedent in Kokomo, Ind.: that at that time the appellee was unable to speak or write the English language, and had no friend or relative, except the decedent, in Indiana; that from the month of May, 1869, until the month of July, 1877, the appellee resided with the decedent in Kokomo, Ind., under said promise, frequently repeated to her, that she, upon her death, would make the appellee the heir of all her property; that during these eight years of residence with the decedent she did not educate or support the appellee according to her condition in life, but deprived her of all society of her class, and required her to do the work of a servant in the house and of a manservant out of the house, working early and late; that appellee was so humiliated by the tasks she was required by the decedent to perform that, to avoid observation, she would get up and perform them in the early dawn; that when the appellee arrived in this country the decedent was worth in ber own right $12,000; that before her death she bad accumulated property until she was worth about $50,000; that after the death of the decedent's husband, Walter Hooper, in 1885, the appellee, at the decedent's request, left her own family, and went to the decedent's house, and waited upon her, and administered to her in her trouble and sorrow, when and where the decedent, in consideration of the appellee's continuing to wait upon her, and do for her as she might want, and in consideration for her past services, again promised the appellee that she would make the ap pellee her heir, and leave to the appellee at her death the bulk of all her property, and would reward and compensate the appellee for all she had done for her; that the decedent died intestate in Howard county, Ind., on the 4th of October, 1889, leaving surviving her as her heirs at law two sisters and a brother and three children of a deceased sister, to inherit her property; that she died suddenly, without having paid the appellee anything for her said services; that the services rendered by the appellee for the decedent from the spring of 1869 up to the time of the decedent's death were of the value of $8,000, "which is due and unpaid. If the law is with the plaintiff, we, the jury, find for the plaintiff, and assess her damages at the sum of eight thousand dollars. If the law is with the defendant, we find for the defendant." If, upon the facts found and stated in the first part or “paragraph" of the verdict, under the first paragraph of the statement of claim, the appellee was the owner of the tin box and its contents, as to which we now express no opinion, there was a cause of action for the recov ery of the possession of personal property in favor of the appellee against Henry C. Davis as an individual, but there was no ground of claim, under such facts, against the decedent's estate or against said Davis as administrator. An action of replevin is an action in tort, and an administrator, as such, cannot commit a tort. Under such a complaint as the first paragraph of the statement of claim, or under such a special verdict as the part of the verdict based upon the first paragraph of that statement, there could not properly be a judgment against the decedent's estate. It is the estate that is here sued, and Davis is a party only in his representative character as administrator. He is not connected with the proceeding in his individual character, and he cannot be held liable in his representative character for his individual tort. Rose v. Cash, 58 Ind. 278; Berghoff v. McDonald 87 Ind. 549: Riley v. Kepler, 94 Ind. 308, Rodman v. Rodman, 54 Ind. 444; Hankins v. Kimball, 57 Ind. 42; Hendrix v. Hendrix, 65 Ind. 329; Evans v. Hardy, 76 Ind. 527; Trimble v. Pollock, 77 Ind. 576; McClead v. Davis, 83 Ind. 263; Kidwell v. Kidwell, 84 Ind. 224; Martz v. Putnam, 117 Ind. 392, 20 N. E. Rep. 270; State v. Barrett, 121 Ind. 92, 22 N. E. Rep. 969. It is not necessary to discuss or decide any question suggested by counsel as to whether the facts set forth in the second part of the verdict amount to a departure from the second paragraph of the statement of claim, or as to how far, if to any extent, the rights of the parties under such facts are affected by the statute of frauds or the statute of limitations. It appears from the second part of the verdict that at the time of the appellee's acceptance of the intestate's offer, and during the eight years of service from 1869 to 1877, the intestate was a married woman. The claim was for the value of the eight-years service. Under the law of this state at the time of the making of the agreement and during the period of the service such an executory contract of a married woman, whether in writing or by parol, was absolutely void. She could not be made liable for a breach of the contract, and there could be no implied obligation to pay for the service rendered thereunder. The contract being void, it could not be ratified by her after the termi nation of the coverture, and she could not render herself liable for such service by a new promise made after she became a feme sole, without a new consideration. O'Daily v. Morris, 31 Ind. 111; Maher v. Martin, 43 Ind. 314; Putnam v. Tennyson, 50 Ind. 456; McCabe v. Britton, 79 Ind. 224; Thomas v. Passage, 54 Ind. 106; Candy v. Coppock, 85 Ind. 594; Schouler, |