The objection that the appeal was too late does not appear on the return, and could only be taken advantage of on motion to set it aside.
Upon the trial of this case, the court below admitted in evidence a handbill, posted up at the office of certain persons at Chagres, in reference to the time of sailing of the steamer, and by which the plaintiff was induced to purchase a ticket for the passage. There was no evidence to show that the persons who sold the ticket were the agents of the defendant, or had any authority from him to make any representations.
In his remarks to the jury, the judge stated that the handbill formed a part of the contract, because it was exhibited to public view where the tickets were sold.
The evidence did not warrant any such instruction. Before the defendant could be held responsible for any representations made by Zachrisson & Co., it should have been proven that they were his agents, or, at least, that they had authority to make contracts for the sale of tickets. Throughout the whole case the testimony disproves such agency; and the mere fact that tickets sold by them were received on board the vessel is not sufficient to warrant the presumption of such agency. They may have purchased tickets and resold them, or may have sold for others than the owners of the vessel. The evidence appears to me insufficient to warrant the conclusion that the handbill was any part of the contract between the plaintiff and the defendant.
*142The court also erred in admitting the representations of the consul, as to the partnership of the person from whom the ticket was bought with Zachrisson & Co., and the alleged agency of the latter. His representations were not evidence against the defendant. They were not admissible as any part of the res gestee, nor is hearsay admissible evidence to prove partnership. I know of no rule which allows the admission of such evidence.
Upon these grounds the judgment is erroneous, and it becomes unnecessary to examine the other points raised by the defendant. Some of them appear to be not free from difficulty, and it is advisable for the plaintiff, on a new trial, to avoid the objections now taken, if it can be done.
Judgment must be reversed.