concurring:
The defense in this case rested upon two grounds: First, that the defendant did not employ the plaintiff to perform the services upon which the action is brought; secondly, that the corporation had no legal authority to engage in the business in which the services were rendered, and therefore, if it did employ him, it is not liable upon the contract. In my judgment, there is no necessity to consider the second ground, and in passing upon the sufficiency of the first I think the two should not be confounded. As to the second, I am not prepared to say that the contract was ultra, vires, it being shown that the change of management of the mines to be brought about by the plaintiff’s report was almost indispensable to the continued operation of the defendant’s road (see 1 Mor. Priv. Corp., sec. 362, et seq.; Tod v. Land Co., 57 Fed. 47; Louisville & N. R. Co. v. Literary Soc. of St. Rose, 91 Ky. 395; Town Co. v. Morris, 43 Kan. 282); nor, if it were ultra vires, would this act, it being a completed contract, constitute any defense to the action (see State Board of Agriculture v. Citizens’ St. R. Co., 47 Ind. 407; Linkauf v. Lombard, 137 N. Y. 417). But, as just remarked, I deem it unnecessary to decide this proposition.
Whether the defendant made the contract with the plaintiff involves a question of agency. The defendant, a railroad corporation, was engaged in running a railroad in this state. C. W. Hinchcliffe was general superintendent of the road, and, as such, presumptively clothed with such powers, and only such, as ordinarily belong to the position, and which were sufficient to authorize him to enter into all contracts necessary and proper for the management of the road as railroads are usually managed. As such agent, and without further authority, he made the contract with the plaintiff upon which the action is brought, whereby it was agreed that *241the plaintiff should receive $1,000 for making a report upon certain mines. This was clearly outside the ordinary scope of a railroad superintendent’s duty, and could only bind the defendant if specially authorized, or subsequently ratified. To be sure, Hinchcliffe was directed by the defendant’s president to make the contract, but it was not found that the president had any more authority in the matter than had Hinchcliffe himself,' and certainly we cannot presume that he was authorized, by.virtue of his office, to make a contract so different from what would ordinarily be included in the duties of a railroad president.
Whether subsequently ratified or not, is, under the ch> cumstances shown here, a question of fact (2 Mor. Priv. Corp., sec. 633; Nims v. Boys’ School, 160 Mass. 177), upon which there is no finding; and, if necessary to support the judgment, we would be required to presume that the court found that it had not been ratified. The most that can be said of this phase of the case, as it is presented here, is that a certain probative fact is found, to wit, the beneficial use of the report by the defendant’s officers in effecting a change of management of the mines, from which the ultimate fact of ratification might perhaps have been found. But there is no finding that such use was any more authorized than was the act of obtaining the report in the first place, and, while the use is evidence from which ratification might be inferred, it does not of itself necessarily constitute ratification.
It was further found that, as a result of the sale of the mines, there was an immediate increase of the traffic and business of the defendant, and of its revenue therefrom; and it is argued that having received this benefit from the sale, which to some extent was furthered by the plaintiff’s report, it is now estopped to deny the agent’s authority in obtaining the report, or, at least, that it is a ratification of his act in so doing. Aside from others that might be made, it is a sufficient answer to this contention to say that before the retention of benefits derived from the unauthorized act of an' agent can have this effect it must appear that the principal' was in a position to either accept or refuse the benefit, as he' deemed best. (Cincinnati v. Cameron, 33 Ohio St. 336, 374, Zottman v. City of San Francisco, 20 Cal, 96, 107.) Where such choice exists, it is only just to hold that, as the prin *242cipal has seen fit to accept the benefit of the agent’s act, he must also assume the burdens. But it does not exist here. The railroad company was not at liberty to refuse the additional traffic, offered, as it was, by other parties, and having no possible connection with the plaintiff or his report, and therefore its acceptance does not amount to either ratification or estoppel.
I concur in the judgment of affirmance.