The action was brought to recover the sum of $269.24, paid to the use of the defendant, and which he was to repay on demand. This amount was admitted to be due, but by way of counterclaim the defendant alleged a contract of employment by virtue of which the plaintiffs became indebted to him for a balance of $1,000, and, after deduction of the amount admitted, demanded a judgment for $730.76, with interest.
According to the defendant’s -story, the contract of employment between him and plaintiffs provided that he was to receive a salary of $4,000, commencing July 1, 1889, and an additional sum of $1,000 if he remained with the plaintiffs during the year and faith*55fully performed his duties as assistant buyer; and he alleged that he complied with the terms of the agreement, but was only paid $4,000 on the contract. The question litigated upon the trial and arising upon this appeal relates to the contract of employment and to the evidence admitted to establish its terms.
The plaintiffs were doing business in Philadelphia under the firm name of Hood, Bonbright & Co. One Sidney W. Rice was employed by them as manager and buyer of the dress goods department. There is some controversy as to the date when he was actually employed, his testimony being that he was engaged in May, 1889, his work to begin on July first, following; but apart from the actual date when the contract was made, it is clear that he was employed some time prior to the date last named, and that he entered upon the discharge of his duties on that day, namely, July 1,1889. Prior thereto, the contract of employment between the defendant and plaintiffs was made on behalf of the latter through Rice, and on this point we have the testimony of Thomas B. Wanamaker, who was a member of the plaintiffs’ firm and the managing partner. He testified in substance that Rice told him that he knew a man out. west who he thought would be desirable for his department; that he asked his name and was told that it was Megraw; that he inquired what he could get him for and was told $4,000; that after some further conversation he told Mr. Rice that he would take Mr. Megraw if he would come for $4,000 ; that Megraw came and he put him on the payroll at $4,000, which amount he received between July 1, 1889, and July 1, 1890, when the firm dissolved and a new firm was organized with different partners, into whose employ Megraw went at a salary of $5,000. Wanamaker states that he never had-any conversation with the defendant as to the salary or terms of employment, but that he authorized Rice to employ him, limiting his right to do so by naming the salary which should be paid at $4,000; that the defendant subsequently came to work, and he did not inquire of him the terms, and these were never mentioned between them. To use his own language : “ I did not at any time after that have any conversation with him about the terms of his employment.”
It, therefore, appears throughout the testimony of this witness that, although he insists that he did not authorize Rice to make a *56contract to pay the defendant more than $4,000, he himself had nothing to do with the making of the conditions nor with the actual employment, the whole subject having been delegated to Rice, who sought out the defendant and made the contract under which the defendant was employed for the year and performed his duties. -
This testimony was given after the defendant had rested, but it is referred to at the outset to accentuate the real point in dispute, to show to what extent the parties differed as to the facts and circumstances surrounding the defendant’s employment. The defendant, Upon whom the burden of proof rested, to prove the agreement under which he was to receive $5,000, testified to the conversation with Rice at the time of the employment, and we have the testimony of Rice, which was taken by commission, on the same subject. Both testified distinctly and positively that in the understanding between them the terms were that, in addition to $4,000, the defendant was to receive an additional $1,000 provided he remained with the firm during the year and faithfully performed his duties; and that the purpose of making this form of agreement was to insure the defendant’s remaining with the firm the entire year.
Upon the subject of the terms of the contract, therefore, there was a question of fact for the jury; and the evidence not predominating in plaintiff’s favor, their verdict should not be disturbed, unless it was affected in some way by incompetent evidence to which objection was duly made. We are thus brought to what are really the serious questions here involved, relating to the rulings of the court upon the admisssion of evidence.
The testimony of Rice, as stated, was taken upon a commission, and many questions put to him were bad in form. This circumstance, however, should not be viewed too seriously, because the defects could have been obviated had the plaintiffs seasonably objected when the commission was taken out. We think, therefore, that, regardless of the form of the questions, the testimony if relevant and competent in itself should not, upon the ground of form, be excluded from consideration. In the beginning and throughout the case, by objection and by motions to strike out and to dismiss, the plaintiffs excepted to all the statements and declarations of Rice upon the question of his agency or his right to fix any terms with the defendant other than those which Mr. Wanamaker himself says *57he specially limited Rice’s authority to offer. And in this connection we are treated to a learned brief by the appellants upon the distinctions between special and general agents and the difference in the obligations respecting notice, inquiry and vigilance resting upon those dealing with them.
Though perhaps incidental, we deem it unnecessary to discuss these questions at this time, for the reason that we are concerned with a question of fact rather than of law. There is here a conflict between Wanamaker and Rice as to what limitations, if any, were placed upon the latter’s authority to employ defendant. And it is only by assuming, as the appellant would have us do, that we must, as matter of law, conclude that Wanamaker’s statement is the true one, that we would be justified in deciding the agency to be special and the authority limited. Such an assumption might compel us to adopt appellant’s further contention that in dealing with an agent of limited authority, the duty of inquiry and of ascertaining the extent of the agent’s powers would be upon defendant. Against such an assumption, however, we have the positive testimony of Rice that he had general authority to employ defendant, and that Mr. Wanamaker did not limit or restrict his power to employ him at a salary not exceeding §4,000. Rice says: “ Thomas Wanamaker, in May, 1889, employed me as manager of the dress goods department and buyer therefor, and that among my duties as such manager * * * I was to employ all the help in my department.”
And he further testified that, in pursuance of such authorization, he employed Megraw to serve the plaintiffs, as assistant dress goods buyer for a term of one yeai', commencing July 1, 1889, at a salary of §4,000 and an additional sum of §1,000 at the end of the year. Although in his answers, instead of giving the actual conversation, he used words like “agreed” and “employed,” which to some extent involved conclusions, the responses were not on this ground incompetent because, reading them in relation to the context in which they are used, they are really a statement of what was said and what was done between him and Mr. Wanamaker when the authorization to employ the defendant, which it is conceded ivas confided to him, was given. The question, therefore, whether Rice was an agent with general or with limited authority depended *58upon the conclusion which the jury might reach upon the issue oi fact arising as to what was actually said and done at the time the authority was given.
The discussion of the other exceptions to rulings on evidence permitting statements and declarations by Rice without first requiring him to prove his agency would involve but a reiteration of a similar line of reasoning. It is, of course, well settled that an agency cannot be proved by the agent’s own declarations to that effect. Here, the order of proof upon the trial was to some extent departed from because Rice was not present, his examination having been taken-by commission; but this matter was one within the discretion of the trial judge. When, however, the plaintiff had rested, as well as at the close of the case, there was no real dispute but that Rice was the person who had been authorized and had acted as the agent of the plaintiffs in employing the defendant, the only question being whether he had exceeded his power in making a contract which fixed the salary at more than $4,000.
The agency being proved, if not practically conceded, what the agent said and did pursuant to his agency, was competent. That Rice was told to employ Megraw; that he entered into the contract of employment with him in Chicago’ where Megraw then was and accepted the terms then made; and that the circumstances were never mentioned or spoken of by the plaintiffs, is not seriously disputed. In order to determine what were the terms of the contract between Ricé and Megraw, it was competent for the parties who made the contract to detail them, leaving only the question which we have already discussed as to whether Rice exceeded his authority in making a contract for more than $4,000. This turned on the credibility of Mr. Wanamaker as against Mr. Rice and was a question for the jury.
Having reached the conclusion, therefore, that no serious errors were committed upon the trial in rulings upon evidence, and the judge in a full and impartial charge having presented all the questions of fact to the jury, their verdict must be held to have settled the dispute and the judgment thereon should, accordingly, be affirmed, with costs.
Van Brunt, P. J., and Rumsey, J., concurred; Barrett, J., dissented.