In this case there is no conflict of testimony, so far as it relates to the liability of the defendants ; no facts in relation to this point for the jury to pass upon. The instruction was that the action could be maintained, leaving only the question of damages to the jury. If this was correct, the defendants have no cause of complaint for the refusal of the requests for certain instructions made by them. On the sixteenth of February, 1871, the plaintiff purchased of the defendants’ station agent at South Paris, a ticket entitling him to a passage from that place to Northumberland. Upon the ticket was indorsed the date and “good for this day only.” In the absence of other testimony, this would have been proof of a contract for a passage on the train that went through on that day. But the plaintiff stopped at Gorham, an intermediate station, and the next morning got upon the cars to complete his journey, claiming the right to do so by virtue of the ticket purchased the day before, and refused, upon demand of the conductor, to pay any further fare, whereupon he was expelled from the cars. This expulsion is now justified on the ground that the ticket is the only admissible evidence of the contract between the parties, and is therefore conclusive upon that point.
But it is seldom, if ever, that the ticket embodies all the elements of the contract. The running of the trains as well as all reasonable rules prescribing the manner and facilitating the business of carrying passengers, certainly so far as known, become a part of the contract, and may be proved by either party, though not indorsed upon the ticket. Sears v. Eastern R. R. Co., 14 Allen, 433. In the case at bar the enquiry presented is — what is the contract ? Not whether the rule of the company, or the contract expressed by the ticket, is reasonable. No objection is made to the authority of the company to make such a rule or contract. But did the plaintiff have such a knowledge of the rule as to make it binding upon him, or did he in any way assent to it as a part of the contract for his passage from South Paris to Northumberland. As either party may prove terms of the contract, not expressed upon the ticket, so either party may prove the accept*302anee, or rejection, or waiver of any terms thereon indorsed. The ticket is not a written contract signed by the parties. It is, at most, evidence of some existing contract for a passage between two places named, and that the holder has paid the fare demanded.
Upon the plaintiff’s ticket we find the indorsement “good for this day only.” The fact that he accepted and produced it as proof of his right to a passage would certainly be prima facie evidence of his right to a passage on the day of its date alone, and possibly he would not be permitted to deny that he was bound by that indorsement, unless he could show that his assent had b een withheld with the knowledge and consent of the company. This he attempts to do, by showing just what contract was made with the ticket agent at South Paris. But it is said this agent had no authority to change any of the rules of the company and, therefore, his acts or statements upon this point are not admissible. It may be conceded that this, or any other agent, had no authority to change or abrogate any rule established by the company, but the consequences claimed will by no means follow. He was placed there for the purpose of selling tickets, and it may be admitted, such tickets as will secure a passage in accordance with the rules of the company. The plaintiff desired to purchase just such a ticket. He was ignorant of the rules of the company, but wished to go over a portion of the road one day and another portion the next day. The rules make a part of the contract. It seems that before this the conductor had been permitted to give “stop-over checks.” This custom had been abrogated but a few days previous, of which, so far as appears, no notice had been given. This is the very point upon which the plaintiff desires information. To whom shall he go to obtain it ? To whom can he go but to the person appointed by the company for the purpose of giving such information, and selling the proper tickets % To that person he does go, and is informed that the custom of giving stop-over checks still continues, and that it is necessary to purchase but one ticket. Relying upon this information, as he was justified in doing, he *303purchased, his ticket and paid the fare demanded for the whole distance.
The real contract between the plaintiff and the ticket agent was made before the ticket was seen. The plaintiff paid his money upon the statement of the agent, and not upon any indorsement upon the ticket. He took the ticket, not as expressing a contract, but as proof of the contract he had already made with the agent. He had neither seen nor assented to the indorsement, nor was he asked to assent to it. As between the plaintiff and agent the contract was definite, with no misunderstanding or suggestion of it.
Under that contract the plaintiff commences his journey, and on the first day asked for his “stop-over cheek” and is informed by the conductor, not that his ticket is not sufficient, or in any way different from those previously issued, but that his orders were not to give out any more “stop-over checks.” Still he was permitted to retain his ticket, encouraged to expect that he would be permitted to complete his passage according to his understanding of the contract. On the next day, however, his ticket was refused and, upon demand being made, he refused to pay a second fare, whereupon he was expelled from the cars.
The conductor acted in obedience to orders from his superiors; the plaintiff, in obedience to information he had received from the ticket agent and upon which he had paid his money; surely, then, he was not in the wrong. But it is said the company were not bound by the contracts of'the agent. Admit it. The conductor had proof from the ticket that the fare had been paid for the whole distance and from the statements of the plaintiff, which he had no reason to doubt, and which were confirmed by the custom so lately abrogated, that he had paid it upon the representations of the agent, that the ticket would carry him through. If, under these circumstances, the company, through the conductor, would repudiate or deny the contract* the least they could do would be to pay back the surplus money that they had received, or deduct it from the fare claimed, neither of which was done, or offered to be done, and this they were legally bound to do before refusing to execute *304the contract made by their agent, even if they were not bound by it. Cheney v. B. & M. R. R. Co., 11 Metc., 121; 1 Redfield on Railways, 100, note. Exceptions and motion overruled.
Walton, Dickerson and Barrows, JJ., concurred. Appleton, C. J., did not concur. Virgin, J., having been of counsel, did not sit.