The oxiinion of the court was delivered toy
Mr. Justice Pope.This action came on to be heard before his honor, Judge Norton, and a jury at a term of the Court of Common Pleas for Auderson County. Verdict being in favor of plaintiffs, judgment thereon was duly entered, and the defendant now ax>peals to this court.
1 The first question relates to the competency of certain testimony to which exception was taken at the hearing, and may be thus stated. Is it competent in the trial of well defined issues raised by the pleadings to admit the testimony of witnesses that relate to issues other than those raised by the pleadings? The practical result reached in the case at bar in the court below was that two witnesses, Craft and Ferguson, testified as to the x>resence of one Dennis, a brakeman on a train, with other parties, on the Savannah Valley Railroad, on the morning of the day on which a certain package of money, conveyed by the defendant for one E. R. Horton, at Lowndesville, a station on the Savannah Valley Railroad, was delivered or attempted to be delivered to said Horton on the train of said railroad by one R. W. Colyer, who was the agent at Lowndesville for the Southern Exx>ress Company. Our answer to the *455question would be that such testimony would be incompetent, if introduced for such purpose. The difficulty in such cases is that frequently the design to defeat the operation of this rule is not made to appear at the time, or, in some instances, the result of such testimony is not direct, but flows as a consequence from testimony that is competent. In this instance, it was legitimate to inquire into the crowded condition of the platform, and also as to the order in which the parties on such platform went into the train, with a view to ascertain if Horton actually received the package of money; and as the brakeman, Dennis, was there, and also went into the train, such testimony was admissible for those purposes. It seems to us, therefore, that this court is powerless in the premises.
2 The next question that is presented relates to the alleged error of the Circuit Judge in refusing a request to charge, presented by the defendant. The Circuit Judge refused to make the charge, because he would thereby express his opinion to the jury on the facts of the case. If such were the case, the Circuit Judge was right, but the appellant insists that such is not the case—that the request to charge was predicated upon hypothetical findings of fact by the jury, and if this were so, the judge would have been in error; for it is very often the case that this is the only mode by which a party litigant can obtaiu a declaration of what the law is in a particular case from the presiding judge. The jury are obliged to take the law from the court, and lest the judge may overlook some proposition of law that a party desires the jury to have before them, requests to charge are made.
3 We will examine this proposition somewhat in detail. At the trial it was established that the rules of the Southern Express Company required a receipt for money packages before the same were delivered. On the morning that the package of money in question was to be received at Lowndesville by Mr. Horton, the train was late, and in such cases it was well known that such train would not stop at the station (Lowndesville) long enough for the said Horton to receipt to the agent of the express company for the package, and thereafter board the train for passage thereon. Under these *456circumstances, Horton applied to the agent of the express company to allow him to receipt for the money in advance of the arrival of the train, to the end that such money package might be delivered to him in time to proceed on the same train. At first this proposition was declined, but upon Horton assuring the agent that such an arrangement would “relieve him” (the agent of express company), it was consented to. Afterwards, in pursuance of this arrangement, Colyer, the agent of the express company, carried the money package to the platform of the car on which Horton was standing, and pitched the package towards him, saying at the same time, “Here, Horton, here is your money;” and the package lodged on the top step of such platform. It is claimed that Horton never actually received the money.
Now, it is certain that the Southern Express Company held out to the world Colyer as its agent, and thereby assumed responsibility for all the acts of Colyer in the course of his agency for such company. But Horton was the person entitled to receive the package of money, and he was apprised by Colyer, the agent, of the rules of the express company, and to enable him to obviate the delay of the receipt of his money by a compliance with such rules of the company, he agreed with Colyer at his (Horton’s) request, to do that which he himself said would relieve such agent (Colyer) from responsibility. The difficulties are now apparent; for here is Colyer, as the agent of the express company, receiving this package of money, that by the rules of the. company he is to deliver to Horton on his receipt therefor on. the books of such company prepared for that purpose. Can that agency of Colyer to the express company be terminated by an arrangement with Horton, whereby, upon Horton’s receipt upon such company’s books, Colyer no longer holds such package as the agent of the express company, but, on the contrary, as the agent of Horton, to whom the package of money was sent? If it should be held that Colyer could not be regarded as Horton’s agent in this transaction, then the express company would be required to assume all the consequences of Horton’s prevailing upon their agent to depart from what he knew were the rules of such company, by an *457agreement that such departure from such rules would release the company from all responsibility. It does seem that when a principal causes the rules that govern the transaction of its business by agents to be well known and well understood by the customers of such principal, and thereafter one of such customers prevails upon an agent of such principal to vary or depart from one of those rules, upon an agreement to release him from responsibility for his disobedience of such rules, and upon such departure from such well known rules a loss occurs, the principal should be released. The request to charge in this case that was refused by the Circuit-Judge, was intended to bring out a declaration of this principle of the law by him, and such refusal by the Circuit Judge was error.
It is the judgment of this court, that the judgment of the Circuit Court be reversed, and that the cause be remanded to such Circuit Court for a new trial.