Appeal from Second Judicial District Court, Washoe County; W. H. A. Pike, Judge
Charles R. Lewers, for Appellant.
James Glynn, for Respondents.
This is an action for damages for the conversion of a certain frame dwelling-house in the town of Mina and
for certain articles of personal property within said dwelling-house at the time of the alleged conversion. The prayer of the complaint was for $813 actual damages and $1,000 exemplary damages. The case was tried to a jury, and a verdict rendered for the plaintiffs for $375 damages. From the judgment and from an order denying a motion for a new trial, defendant has appealed.
At the time of the alleged conversion or shortly prior thereto, the plaintiffs, respondents herein, had been employees of defendant, appellant herein, as car repairers, and had been living in a construction car of defendant provided for such purpose, and which was upon a side track in the town of Mina. The house in question was constructed by the plaintiffs upon the right of way of defendant. In the construction of the house it is conceded that some of the lumber used was obtained from the defendant, but the evidence is conflicting as to the amount of defendant's lumber so used.
 It was the contention of defendant at the trial that that the plaintiffs were trespassers, and hence could acquire no rights of property by means of such trespass, and further that a considerable portion of the material used in the construction of the house was the property of defendant, taken without the consent of defendant and commingled with the other material purchased by plaintiffs. It was the contention of plaintiffs that they had authority from the car foreman and the station agent to construct the building on the land of the defendant and use of defendant's material in its construction. The evidence as to the claim of authorization to do the acts in question given to plaintiffs by the station agent and car foreman was sharply conflicting. The testimony of the plaintiffs in this respect, conceding it to have been accepted by the jury, presented a number of questions of law relative to the authority of the station agent and car foreman as agents of the defendant corporation to bind the latter. The station agent and car foreman, not only testified that they did not give consent to construct the
building or use the material, but testified that they had no authority so to do. The proof of agency upon the part of the plaintiffs rested largely, if not entirely, upon the mere fact that Stanton was station agent at Mina, and Medill was car foreman in charge of plaintiffs in their work. But, as said by Huffcut on Agency:
It is the conduct of the principal, and not of the agent, from which authority must be inferred. (Section 137.)
Stanton and Medill may have acted in such a way as to lead plaintiffs to suppose that they had authority to do nearly anything at Mina. As indicated by Mr. Huffcut, this is not enough. There must be some sort of a showing that the defendant held them out as having power to do the particular things which they are alleged to have done. It cannot be assumed, in the absence of proof, that a railroadman in charge of a freight and passenger business has authority to lease land belonging to the company or to give away its property; nor can it be assumed, in the absence of proof, that a mere car foreman in charge of repair work has authority to permit houses to be built on company land and to permit material belonging to the company to be used in the construction of these houses.
[2-3] Among the instructions given to the jury, at the request of the plaintiffs and excepted to by defendant, was the following:
You are instructed that, if you believe from the evidence that the witness Stanton * * * was an agent of the defendant, the Southern Pacific Company at Mina, Nevada, having a reasonably general control of defendant's affairs at Mina, and that during said time he had knowledge that the plaintiffs were building the house in question, and that the house was upon ground claimed by the defendant, then it was his duty to notify the plaintiffs that they were building on the company's ground, and, having such knowledge, and failing to ...