1. The entry on the defendants’ book was competent evidence for the plaintiff. It had a tendency to show the amount in their hands on account of Welsh, for which they might be chargeable, and thus to furnish the basis for the alleged contract to pay that amount to his creditors; and such entry, if made by one authorized to make a contract to that effect, would indicate the assumption of the payment of that sum to the creditor of Welsh, or at least the withholding of so much for that purpose.
2. As to the testimony of Holmes, as to his having, in the course of his agency, without objection from the owners, sometimes accepted orders drawn on the owners by seamen in favor of persons who had furnished them supplies and outfits, and his having paid the same at maturity: As we understand the case, Holmes was called by the defendant as a witness to disprove the agency, and was himself one of the defendants. As a portion of the cross-examination, under the large liberty allowed in such cases, we think it was competent to ask the witness as to his acts in this respect. As evidence in chief for the plaintiff, such evidence of acts of that character would not establish the liability of the defendants. Taber v. Cannon, 8 Met. 459. Gould v. Norfolk Lead Co. 9 Cush. 338.
But although this be so, yet the question further remains, whether the evidence was not legally competent as bearing upon the extent of the agency conferred on Holmes. If not further confirmed and extended it was insufficient, but with other facts showing a general agency to manage the financial affairs of the company as connected with seamen’s wages, it might have some tendency to show such authority to act in the present case.
3. As to submitting to the jury to determine from the evidence what was the extent of the authority conferred upon Holmes: It was proper to submit this question to the jury; but the defendants had the right to proper instructions from the court in matter of law, and if such instructions were asked for and not given, the verdict must be set aside. Temple v Pomroy, 4 Gray, 131.
*204The question then recurs as to what should have been the ruling in matter of law. Could Holmes, under his agency, as shown by the evidence, enter into this contract with the plaintiff? Clearly such agency would not authorize Holmes to give negotiable notes and accept negotiable drafts on account of the company, as was held in Taber v. Cannon, and other cases cited. But he had authority to settle with seamen, and pay their dues from the moneys of the company in his hands. The pressure of the case is, that this was an executory undertaking to pay money to a third person, thus creating a creditor to the company in the person of one who had furnished no materials or labor appertaining to the business of the company. This can only be justified as within the authority of the agent under the peculiar circumstances of the case, arising from the suit at law against Welsh, their debtor, in which they were summoned as trustees. As already remarked, Holmes was authorized to pay the wages of the seaman, and this money was due to Welsh. Its payment to him personally was interdicted by force of the trustee process, and the same was held to respond to the suit of the plaintiff. In this state of the case, the agent was, with the consent of Welsh, clearly authorized to pay over the money to the plaintiff, and discharge the trustee process. In lieu thereof, the plaintiff took the stipulation of the company through their agent to pay the same to the plaintiff, and in consideration thereof discharged the trustee process against the defendants. The law having, by force of the trustee process, given the plaintiff the right to receive this sum of money after judgment in that suit, and there being no defence for either principal or trustees, it would seem reasonable that their general agent, acting for the company, might bind the company to do what they would without his agency have been required to do, if the suit had proceeded to judgment. Unde, these circumstances, the jury might properly find the authority of Holmes to charge the defendants with payment of this sum
Exceptions overruled.