CHARLES R. JOHNSON, Respondent, v. THE PACIFIC MAIL STEAMSHIP COMPANY, Appellants

CHARLES R. JOHNSON, Respondent, v. THE PACIFIC MAIL STEAMSHIP COMPANY, Appellants. Tbe plaintiff sued to recover for services as agent of defendants, under an alleged agreement with defendants’ agent, but there was no proof that the agent had authority to make the agreement. Held, that the plaintiff should have sued for work and labor done, and not upon the agreement. Appeal from the Superior Court of the City of San Francisco. The plaintiff had acted for some months as the agents of the defendants, at San Diego. This suit was brought to recover the sum of $1,800, alleged to be due the plaintiff for services rendered. The complaint averred that the plaintiff had been employed by Robinson, Bissell & Co., who were the defendants’ agents at San Francisco. The proof adduced at the trial established this fact, but no evidence was brought forward to show that Robinson, Bissell & Co. had any authority to employ an agent at San Diego. The Court charged the jury in favor of the plaintiff. Defendant’s counsel excepted. The jury found for the plaintiff in the sum of $6,119. The Court overruled a motion for a new trial, and defendants appealed. Hall McAllister, for Appellant. Ely and Rankin, for Respondents. [MAJORITY — Heydenfeldt, J., delivered the opinion of the Court.] Heydenfeldt, J., delivered the opinion of the Court. Murray, C. J., concurred. There was shown no power on the part of Robinson, Bissell & Co. to employ an agent of the defendants. If the plaintiff had sued for work and labor done as the employee of the Company, possibly the evidence would have entitled him to a recovery. But the present action would be no bar to a subsequent action for that purpose, and therefore the evidence does not support it. The judgment is reversed and the cause remanded.