Upon a re-examination of this case, we are convinced that the Railroad Company, by its settlement with Harper & Merrielc, as stewards of the Company, precluded itself from denying their agency. The Company is, therefore, liable.
By a clause in the authentic act, which is styled a lease, Harper & Merrick made themselves responsible for all loss and damages which might result from the incompetency, neglect, bad management or mal-administration of the per ■ sons employed by them, whether such loss or damage should arise from accidents on the road or otherwise, or from any matter connected with the establishments.
Perhaps, under this stipulation, the plaintiff might have sued Harper & Merrick; certainly the Company could have called them in warranty.
But this fact does not destroy the right of the plaintiff to call upon the Company to repair the damage occasioned by an employee of persons with whom they have settled, and to whom they have paid a stipulated salary, as their stewards.
It is, therefore, ordered that the judgment heretofore rendered in this cause, be set aside; it is further ordered and decreed that the judgment of the District Court bo reversed, and that the plaintiff recover from the defendants the sum of eight hundred dollars, with legal interest thereon, from the day of judicial demand until paid, and costs in both Courts.
Mr. 0. J. Slidell, having been of counsel for defendants, declined sitting in this cause.