THE PENSACOLA AND ATLANTIC RAILROAD COMPANY, APPELLANT,

v.

WAYNE K. ATKINSON, APPELLEE

The Chief Justice delivered the opinion of the court.

Atkinson sued appellant for money paid out at its request and to its use and recovered a judgment from which an appeal is taken.

The first count alleges that in November, 1881, plaintiff was employed by defendant as a civil engineer, to take the charge and supervision of its road, then being constructed, and was authorized and instructed to employ and hire teams and vehicles for his transportation while engaged in such employment at de'endant’s expense, and defendant promised to pay the same each month, and that under such agreement plaintiff hired teams and vehicles for his transportation in the performance of his duties as engineer to the amount of' $173.50, which plaintiff paid, and defendant paid forty dollars thereof, leaving unpaid $134.60, which remains due him.

The second count alleges that defendant is indebted to plaintiff in the sum of $134.60 for money used and expended by him for the use and benefit of defendant and at defendant’s request, for the hire of teams and transportation while engaged in the employment of defendant as a civil engineer supervising the construction of its railroad.

Defendant demurred to these counts, that they do not show a cause of action in favor of plaintiff; that the first count states facts which give a cause of ad ion to the parties letting teams, &c., but not to plaintiff. The court overruled the demurrer and this ruling is assigned as error. ¥e consider the contract as stated in the first count, sufficient to enable plaintiff to recover for money paid by him for means of transportation in the course of his duties, even though the owners of teams, &c., may have had a right of recovery against the company for the transportation furnished to him, if he had not paid it. The contract was made with him. to pay for his transportation and any reasonable amount he paid • out therefor comes within the terms of the agreement, to be paid by the company. By the same rule the second count is good and the ruling of the court was correct. .

The defendant then pleaded the general issue to all the counts and a further plea admitting that it did employ plaintiff as a local engineer as alleged, to.discharge his duties under the direction of the chief engineer, and that plaintiff was only authorized to contract for and use such transportation as the chief engineer deemed necessary and would allow, and avers that defendant has fully paid for afl the transportation allowed plaintiff by the chief engineer, amounting to Ó67.95.

Plaintiff' took issue upon the pleas and the cause was tried by a jury. The plaintiff proved the agreement stated, and that the amount paid by him for such means of transportation was $173.50, of which he had been paid $40. The president of the company sent him to Gfloster, its chief engineer, for employment as an engineer, who employed him at $100 per month, and all the transportation he wanted in the performance of his duties.

The defendant offered in evidence three letters written to plaintiff by A. W. (Roster, chief engineer of defendant, in regard to the charges for transportation, and the agreement in relation to such charges. These letters were dated respectively January 10, June 6, and July 81,1882, after the date of the last item of plaintiff’s account. The letter of January 10, 1882, was read, in which Gloster writes plaintiff, “ you must try and get along without so expensive a livery bill in the future.”

The letter of June 6, is of similar import, and says to plaintiff “ you received pay on your vouchers for all that you could expect to get pay for.” This letter was read to the jury. The letter of July 81 was excluded under objection. Such letter cannot be deemed legal evidence. The engineer was a competent witness and his letters in favor of the company, not being of the res gestee are mere declarations of a party in his own favor. The exception to this ruling was not well taken.

Defendant excepted to the refusal of the court to permit Mathews, an engineer, to testify as to the amount of his livery bill for transportation on another portion of the road under his charge. Mathews had testified that he knew nothing of the condition of plaintiff’s' part of the road. The testimony offered was properly excluded.

Defendant’s counsel asked the court to charge, among other things, as follows: “ If you believe, from the evidence, that Gfloster had no authority. to make the contract claimed, he made as the agent of defendant, and that the defendant repudiated such contract, then you will find for defendant.” -The court gave the instruction after inserting, the words “ because of such want of authority,” following the word “ contract” last written, and defendant excepted to this qualification.

The statute requires that the court shall declare in writing to the jury his ruling upon instructions proposed by counsel, “ as presented and pronounce the same to the jury as given or refused.” The action of the court was equivalent to refusing the instruction as presented. This would have been error if the alteration had essentially changed the force of the instruction asked for, and if the instruction had been pertinent. There was no testimony in the case tending to show that defendant had repudiated the contract made by Gfloster, the chief engineer, with plaintiff'. On the contrary, the company had paid plaintiff his salary and part of his expenses of transportation according to the contract, and had repudiated a part by refusing to pay it after the expense had been incurred. There was no repudiation of the contract by the defendant or by its engineer, and no attempt to do so.

The last point in the assignment of errors is the refusal to grant a new trial. It is claimed that the damages were excessive, because it was shown that the plaintiff had been paid some S26 more than was allowed by the jury. The evidence, however, shows that the items so paid are not included in the plaintiffs claim against defendant, and this payment was not applicable to the claim sued for, but was a payment by the company to Calhoun, a livery keeper. This is our understanding of the testimony as given to the jury. We fail to discover any error in the finding of the jury, vitiating the verdict.

The judgment is affirmed.