The plaintiff testified that he made the contract for the cars with J. C. Barnes, the station agent of the defendant at Strawberry Point. No proof whatever was introduced of the scope of his agency or £he extent of his power, nor of the manner in which he had been held out to the public by the defendant. J. C. Barnes was introduced as a witness on behalf of the defendant and testified that he agreed only to try to get the cars for plaintiff by the time named. Barnes was asked the following questions by defendant: “State *197whether or not, as agent for the defendant, you had, at this time, any authority to contract to furnish cars, at any point, at any particular time.”
The plaintiff objected to this question as immaterial, irrelevent and incompetent. The objection was sustained, and the defendant excepted. The defendant asked the court to instruct the jury as follows: “The burden of proof is upon the plaintiff to show that J. 0. Barnes, the station agent of defendant, was authorized to bind said defendant by a contract to have cars at Enfield ready for loading upon any particular day; and the fact that said Barnes was station agent of defendant at Enfield aforesaid, is not sufficient evidence to prove that he had authority to bind defendant by such contract.”
The court refused to give this instruction, to which the defendant excepted. The court instructed the jury as follows:
“If you find from the evidence that the railway company, by its agent at Enfield, made an agreement with the plaintiff to have Cars at that place on the 16th day of October, 1879, for the shipment of the potatoes in question, and if you find that the plaintiff had his potatoes there for shipment on that day, and was prevented from so doing in consequence of the defendant’s not having the cars there, and if you further find that the plaintiff was diligent to preserve the potatoes from damage until they could be shipped, and that in consequence of such neglect to have the cars there, the plaintiff’s potatoes were frozen, then the defendant is liable for such damage.” To the giving of this instruction the defendant excepted. These several actions of the court are assigned as error. The court evidently assumed that a station agent, as such, must, as a matter of law, have authority to bind the company by his contract to furnish cars at a given station, at a particular time. It is urged by appellant that it would he impracticable to confer such power upon a mere local station agent. It is said that the disposition of cars must, of necessity, be under the control of some central head, cogniz*198ant of the necessities and demands of the whole line of railway. There seems to us to be much force in these suggestions. But we have not now to deal with the question whether it would be practicable to confer such power, but whether such power has in fact been conferred, or the station agents of the defendant have been held out to the public as possessing such power. This is a question of fact, and not of law. Courts cannot say as a matter of law that station agents must possess the power to bind the company by such contracts, nor can the courts take judicial notice that such agents possess such power, or are held out to the world as possessing it. The defendant proposed to show whether or not the agent did possess power to bind it by such a contract. In rejecting the proffered testimony the court erred. The court also erred in giving the instruction excepted to and in refusing the one asked.
Reversed.