tion for the jury;" citing Indianapolis, C. "The provisions of New York act of 1850, § 39 [p. 232, chap. 140], prescribing a penalty for running a locomotive past highway crossings without giving signals, applies to a crossing where the track is carried over the highway on a bridge;" citing People v. New York C. R. Co. 13 N. Y. 78, Affirming 25 Barb. 199. "It is as much the duty of a company to give notice of the approach of trains where highways pass under or over the track as where they cross at grade, if danger is likely to result to persons or property from a failure to do so;" citing Pennsylvania R. Co. v. Barnett, 59 Pa. 259, 98 Am. Dec. 346. If there was no danger to the persons and property of those who might be traveling along the public road in running its trains without giving any notice of their approach to the bridge, then the company is not chargeable with negligence in not giving it. But if danger might be reasonably apprehended, it was the duty of the company to give some notice or warning in order that it might be avoided. . . Whether, therefore, the company exercised proper care and diligence in running the train in order to prevent injury to the persons and property of those who were lawfully on the public oad and in the vicinity of the crossing, was a question for the jury." It was further insisted in that case that the company would not be liable for failing Again, the same author, at § 154, p. 524, to sound the alarm whistle except at points vol. 3, says: on the road where injury might result to persons on the track at road crossings at grade and stations. The court held that whether it is the duty of the company to give notice of the approach of its trains at any point on the road depends altogether upon circumstances. Where there is no reasonable apprehension of danger, no such notice is required. But if danger to the person or property of others may be reasonably apprehended or is likely to result from the running of its trains without giving such notice, then it is the duty of the company to give it, and its omission is negligence. The court approved the charge of the circuit judge in saying that it was the duty of the company to give notice wherever danger may result to persons rightfully traveling on a public road that crosses the track, whether at grade, or over or under the railroad, where danger would be the consequence of want of notice. It will be observed that the substance of this opinion is that, whether or not it was negligence on the part of the company to fail to warn travelers of the approach of the train to a public crossing, was a question for the determination of the jury, in view of all the surrounding circumstances, and it was immaterial whether the railroad crossed the public road at a grade, or over or under the public road. This latter case seems to be the leading authority relied on by counsel for the plaintiff below, and we shall therefore proceed to notice it in extenso. The facts of that case are that the public road crossed the railroad by a bridge 19 feet above the track. The plaintiff was traveling along this road, and while driving over the bridge an express passenger train passed under it, whistling as it passed, at which his horse took fright and ran away, overturning the carriage and throwing plaintiff out, in consequence of which he was seriously and permanently injured. It appeared that a mill on the east side of the public road obstructed the view of the railroad to some extent. About 100 Another case very much relied on by counrods east of the bridge there was a whistling sel for plaintiff below is Rupard v. Chesapost, and it was usual for trains going west peake & O. R. Co. 88 Ky. 280, 7 L. R. A. to sound an alarm whistle as they passed, 316, 11 S. W. 70. In that case it appeared but at the time of the accident the whistle that the wife of plaintiff, while riding horsewas not sounded until the train was passing back on the public road at a point where the under the bridge. The court, in the midst railroad crosses said road on a high trestle, of its opinion, said: "The degree of care de- was thrown from her horse in consequence manded of the company in running its train of his fright from the noise of the train depended on circumstances, and whether it as it passed over the trestie. The ground observed due care in approaching the bridge, of liability asserted in that case was the or was guilty of negligence in not sounding failure of the company to give notice of an alarm whistle, was a question which the approach of the train to the crossproperly belonged to the jury to determine. ing. The court, in considering the lia bility of the company, repudiated the doc- | trine laid down in Favor v. Boston & L. R. Corp. 114 Mass. 350, 19 Am. Rep. 364, in which a distinction was drawn between the duty of the company to warn travelers of the approach of a train to an overhead bridge or to a grade crossing. In the Kentucky case the court held that it is the duty of a railroad company, where a train crosses a public highway on a trestle, and there is danger of catching a traveler thereunder unawares, and frightening the horse that he is riding or driving, to give some timely warning of the approach of the train to the crossing. The court, in its opinion, while disagreeing with the conclusions reached by the court in Favor v. Boston & L. R. Corp., approved the principles enunciated in Pennsylvania R. Co. v. Barnett, 59 Pa. 263, 98 Am. Dec. 346. when Farley was in the middle of the bridge. It was further held in that case that the question of negligence in failing to give notice should be left to the determination of the jury. Counsel for plaintiff in error cites the case of Farley v. Harris, 186 Pa. 440, 40 Atl. 798, which case, it is claimed, is a modification of the rule laid down in Pennsylvania R. Co. v. Barnett, 59 Pa. 259, 98 Am. Dec. 346. In that case it appeared that the plaintiff was crossing an overhead bridge when his horse became frightened, ran away, and injured the plaintiff. The grounds of recovery alleged in that case were two: (1) That the whistle had been negligently sounded when the locomotive was immediately under the bridge; and (2) that no whistle had been sounded by the locomotive on approaching this overhead bridge. The court said that the rule applicable to grade cross-crossing. Said the court: "It was the duty ings-that it is negligence in railroad companies not to give warning on approaching them-has no application to under and over crossings at every street crossing in a city. The court, in concluding its opinion, says that the cases cited by the appellant (Pennsylvania R. Co. v. Barnett, 59 Pa. 259, 98 Am. Dec. 346, and other cases) are all applicable to a different state of facts than are presented here. A careful examination of Farley v. Harris, 186 Pa. 440, 40 Atl. 798, will show that the gravamen of the action was the blowing of the whistle when Farley was on the bridge, and the locomotive was directly beneath it. The proof was that the fright of the horses was caused solely by the blasts of the whistle 69 L. R. A. of the defendant company to give plaintiff reasonable warning of the approach of the train by the usual signals, so as to put plaintiff upon his guard on his approaching or passing under the track." There was no such absolute duty resting upon the company either at common law or by statute, but its duty in this respect was entirely dependent upon the question of fact whether the place was dangerous. The charge of the court should have been so formulated as to leave to the determination of the jury the dangerous character of the place as the predicate for the application of the principle of law announced. For the error indicated, the judgment is reversed and the cause remanded. Rep. 144. *1. Section 2, chap. 225, p. 246, Laws S. 438-446, 39 L. ed. 214-217, 15 Sup. Ct. 1899, requires a commission merchant, duly licensed to sell grain on commission, to render a true statement to the consignor within twenty-four hours of making a sale, showing the grain sold, price received, name and address of purchaser, and the date, hour, and minute when sold, with vouchers for charges and expenses. Held: This law contemplates an actual purchaser, other than the consignee, and the purchase by him of such grain, after close of business hours, at the highest price of the day upon the board of trade, is not a sale within the meaning of this act, and a report of such sale to the consignor is not a compliance with its provisions. If the consignee makes such purchase, and subsequently sells the same at an advance, such sale inures to the benefit of the consignor, and the failure to return to him a true statement, as provided, constitutes a violation of the law. 2. The consignor is not estopped from repudiating a purchase of grain by his consignee, unless he acquiesces therein, and ratifies the same after being fully informed of the entire transaction, including a subsequent sale at a profit. 3. The statement in the criminal complaint that defendants wilfully and unlawfully made a false report is immaterial. The penalty is imposed for a failure to render the report as provided, irrespective of intent, and it is immaterial that the consignee acted in good faith and in accordance with the custom of commission locality. merchants in that NOTE. AS to rule that agent must not profit at his principal's expense in the matter of his agency, see also. in this series, Tyler v. Sanborn, 4 L. R. A. 218, and note; McNutt v. Dix, 10 L. R. A. 660; Jansen v. Williams, 20 L. R. A. 207; Boswell v. Cunningham, 21 L. R. There is no law making it unlawful for those who follow the business of grain commission merchants under the act here under consideration also to buy grain on the open market, on their own account, and to sell the same at an advance, if possible. The disability which the law, from considerations of public policy, imposes upon the defendants in this transaction, is also imposed upon all parties occupying towards others certain confidential or fiduciary rela tions. Gilbert v. Hewetson, 79 Minn. 326, 79 Am. St. Rep. 486, 82 N. W. 655. Such a transaction between principal and agent is not void, but voidable. Allis v. Billings, 6 Met. 417, 39 Am. Dec. 744; Mechem, Agency, § 464; Story, Agency, § 214; 1 Story, Eq. Jur. 11th ed. § 316a; Eastern Bank v. Taylor, 41 Ala. 93; Bassett v. Brown, 105 Mass. 551; Marsh v. Whitmore, 21 Wall. 178, 22 L. ed. 482; Hammond v. Hopkins, 143 U. S. 224-251, 36 L. ed. 134-145, 12 Sup. Ct. Rep. 418; Hoyt v. Latham, 143 U. S. 553–566, 36 L. ed. 259– 264, 12 Sup. Ct. Rep. 568; Ferguson v. Gooch, 94 Va. 1, 40 L. R. A. 234, 26 S. E. 397; Staats v. Bergen, 17 N. J. Eq. 554; Porter v. Woodruff, 36 N. J. Eq. 174; Adams v. Sayre, 76 Ala. 509; Ives v. Ashley, 97 Mass. 198; Sims v. Miller, 37 S. C. 402, 34 Am. St. Rep. 762, 16 S. E. 155; Francis v. Kerker, 85 Ill. 190; Greenwood v. Spring, 54 Barb. 375; People v. Open Board, 92 N. Y. 98; Jones, Pledges, 2d ed. § 637; 22 Am. & Eng. Enc. Law, 2d ed. p. 892; Lord v. Hartford, 175 Mass. 320, 56 N. E. 609; Bryan v. Baldwin, 52 N. Y. 232; 2 Cook, Corp. 4th ed. § 652; Bjorngaard v. Goodhue County Bank, 49 Minn. 483, 52 N. W. 49; 1 Am. & Eng. Enc. Law, 2d ed. pp. 1073, 1080; 1 Perry, Tr. §§ 205-206; Baldwin v. Allison, 4 Minn. 25, Gil. 11; Tilleny v. Wolverton, 46 Minn. 256, 48 N. W. 908. Such voidable sales have the effect of devesting the property of the principal, cestui que trust, or party similarly situated, and passing the same, subject to divestiture by repudiation, to the agent or trustee, or to their vendees. Pearce v. Gamble, 72 Ala. 341; Baldwin A. 54; Kimball v. Ranney, 46 L. R. A. 403; v. Allison, 4 Minn. 25, Gil. 11; Grumley v. Holmes v. Cathcart, 60 L. R. A. 734; Trice v. Comstock, 61 L. R. A. 176, and Van Dusen v. Bigelow, 67 I. R. A. 288. Webb, 44 Mo. 444, 100 Am. Dec. 304; Fountain Coal Co. v. Phelps, 95 Ind. 271; Kruse v. Steffens, 47 Ill. 112; Marshall v. Carson, 38 N. J. Eq. 250, 48 Am. Rep. 319; Bassett v. Brown, 105 Mass. 551; Lytle v. Beveridge, 58 N. Y. 592; Fulton v. Whitney, 66 N. Y. 548; Gilbert v. Hewetson, 79 Minn. 326, 79 Am. St. Rep. 486, 82 N. W. 655; Lees v. Nuttall, 1 Russ. & M. 53; 1 Perry, Tr. § 206. Being voidable only, it was capable of ratification. The contract was binding until Carlson gave notice of his dissatisfaction with, and refusal to be bound by, such transactions. Nichols & S. Co. v. Snyder, 78 Minn. 502, 81 N. W. 516. Where a principal confers on an agent an authority of a kind, or empowers him to transact business of a nature, in reference to which there is a well defined and general Ratification may be shown by acts of ac- ly known custom or usage, it is the preceptance. Hatch v. Taylor, 10 N. H. 538; Hazard v. Spears, 2 Abb. App. Dec. 353; 1 Am. & Eng. Enc. Law, 2d ed. p. 1195; Goss v. Stevens, 32 Minn. 472, 21 N. W. 549; Wright v. Vineyard M. E. Church, 72 Minn. 78, 74 N. W. 1015; Anderson v. Johnson, 74 Minn. 171, | 77 N. W. 26; Smith v. Fletcher, 75 Minn. 189, 77 N. W. 800; Robbins v. Blanding, 87 Minn. 247, 91 N. W. 844. sumption of law, in the absence of anything to indicate a contrary intent, that the authority was conferred in contemplation of such custom or usage, and to be exercised with reference thereto. Kraft v. Fancher, 44 Md. 215; Long Bros. v. J. K. Armsly Co. 43 Mo. App. 267; Sutton v. Tatham, 10 Ad. & El. 27; Graves v. Legg, 2 Hurlst. & N. 210; Guesnard v. Lou isville & N. R. Co. 76 Ala. 453; Samuels v. Carlson's conduct amounted in law to a Oliver, 130 Ill. 73, 22 N. E. 499; Oldershaw ratification. v. Knoles, 4 Ill. App. 63; Bayliffe v. Butter By reason of partial transit of the car through Wisconsin, the transaction lost its character of domestic commerce, and became interstate. Wright v. Vineyard M. E. Church, 72 worth, 1 Exch. 425; Pollock v. Stables, 12 Minn. 78, 74 N. W. 1015; Anderson v. John-Q. B. 765; Goodenow v. Tyler, 7 Mass. 36, son, 74 Minn. 171, 77 N. W. 26; Robb'ns v. 5 Am. Dec. 22. Blanding, 87 Minn. 246, 91 N. W. 844; Bassett v. Brown, 105 Mass. 551; Story, Agency, 244; Mechem, Agency, § 167; Hankins v. Baker, 46 N. Y. 666; Cook v. Tullis, 18 Wall. 332–338, 21 L. ed. 933-936; Pacific Coast S. S. Co. v. Railroad Comrs. Marsh v. Fulton County, 10 Wall. 676–684, | 18 Fed. 10; Sternberger v. Cape Fear & Y. 19 L. ed. 1040-1042; Grenada County v. Brogden, 112 U. S. 271, 28 L. ed. 707, 5 Sup. Ct. Rep. 125; Sykes v. Columbus, 55 Miss. 115; Lowry v. Harris, 12 Minn. 255, Gil. 166; Sheffield v. Ladue, 16 Minn. 388, 10 Am. Rep. 145, Gil. 346; Wisconsin v. Torinus, 26 Minn. 5, 37 Am. Rep. 395, 49 N. W. 259; Hunter v. Cobe, 84 Minn. 187, 87 N. W. 612; Clews v. Jamieson, 182 U. S. 461483, 45 L. ed. 1183-1194, 21 Sup. Ct. Rep. 845; Hoyt v. Thompson, 19 N. Y. 219; Ballston Spa Bank v. Marine Bank, 16 Wis. 125; 2 Kent, Com. 616; Saveland v. Green, 40 Wis. 431; Brown v. La Crosse City Gaslight & Coke Co. 21 Wis. 51. If the principal wishes to repudiate the unauthorized act of his agent, he should do so when it is brought to his knowledge. | Valley R. Co. 29 S. C. 510, 2 L. R. A. 105, 7 S. E. 836; Hanley v. Kansas City Southern R. Co. 187 U. S. 617, 47 L. ed. 333, 23 Sup. Ct. Rep. 214; St. Clair County v. Interstate Sand & Car Transfer Co. 192 U. S. 454–458, 48 L. ed. 518–520, 24 Sup. Ct. Rep. 300; Wabash, St. L. & P. R. Co. v. Illinois, 118 U. S. 565, 30 L. ed. 247, 1 Inters. Com. Rep. 31, 7 Sup. Ct. Rep. 4; Leisy v. Hardin, 135 U. S. 108, 34 L. ed. 132, 3 Inters. Com. Rep. 36, 10 Sup. Ct. Rep. 681; Mobile County v. Kimball, 102 U. S. 702, 26 L. ed. 241; Bowman v. Chicago & N. W. R. Co. 125 U. S. 485, 31 L. ed. 707, 1 Inters. Com. Rep. 823, 8 Sup. Ct. Rep. 689. it. Being such, the state had no power over Robbins v. Taxing District, 120 U. S. 489Law v. Cross, 1 Black, 535, 17 L. ed. 185; 492, 30 L. ed. 694-696, 1 Inters. Com. Rep. Hoyt v. Thompson, 19 N. Y. 218; Indian- | 45, 7 Sup. Ct. Rep. 592; Welton v. Missouri, apolis Rolling Mill v. St. Louis, Ft. S. & W. 91 U. S. 280, 23 L. ed. 349; State Freight R. Co. 120 U. S. 256,30 L. ed. 639, 7 Sup. Ct. Tax Case, 15 Wall. 280, 21 L. ed. 163; MoRep. 542; Clews v. Jamieson, 182 U. S. 461-bile County v. Kimball, 102 U. S. 697, 26 L. 483, 45 L. ed. 1183-1194, 21 Sup. Ct. Rep. 845. ed. 240; Bowman v. Chicago & N. W. R. Co. The return of the proceeds of an unauthor | ized act is a condition precedent to repudiation. and the failure so to return or tender such proceeds is a ratification. Johnston v. Milwaukee & W. Invest. Co. 49 Neb. 68. 68 N. W. 383; First Nat. Bank v. Oberne, 121 Ill. 25, 7 N. E. 85; Farmers & M. Bank v. Farmers & M. Nat. Bank, 49 Neb. 379, 68 N. W. 488. 125 U. S. 480, 31 L. ed. 705, 1 Inters. Com. Rep. 823, 8 Sup. Ct. Rep. 689, 1062; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 197, 29 L. ed. 159, 1 Inters. Com. Rep. 382, 5 Sup. Ct. Rep. 826; Henderson v. New York (Henderson v. Wickham) 92 U. S. 259-271, 23 L. ed. 543-548; Brennan v. Titusville, 153 U. S. 289-299, 38 L. ed. 719722, 4 Inters. Com. Rep. 658, 14 Sup. Ct. 246. By no possible construction of the law can it be satisfied by a report made by the inerchant of a pretended purchase made by himself. State ex rel. Beek v. Wagener, 77 Minn. 483, 46 L. R. A. 442, 77 Am. St. Rep. 681, 80 N. W. 633, 778, 1134. This transaction was a Minnesota transaction, between residents of Minnesota, and concerns grain that was actually or constructively within the state of Minnesota at the time of the transactions Hopkins v. United States, 171 U. S. 578, 43 L. ed. 290, 19 Sup. Ct. Rep. 40. Rep. 829; Walling v. Michigan, 116 U. S. | Colbert v. Shepherd, 89 Va. 401, 16 S. E. 446-460, 29 L. ed. 691-695, 6 Sup. Ct. Rep. 454; Crutcher v. Kentucky, 141 U. S. 47-58, 35 L. ed. 649-652, 11 Sup. Ct. Rep. 851; Norfolk & W. R. Co. v. Pennsylvania, 136 U. S. 118, 34 L. ed. 396, 3 Inters. Com. Rep. 178, 10 Sup. Ct. Rep. 958; Pickard v. Pullman Southern Car Co. 117 U. S. 34, 29 L. ed. 785, 6 Sup. Ct. Rep. 635; Crandall v. Nevada, 6 Wall. 36, 18 L. ed. 745; State Freight Tax Case, 15 Wall. 272, 21 L. ed. 160; Stockard v. Morgan, 185 U. S. 37, 46 L. ed. 794, 22 Sup. Ct. Rep. 576; Philadelphia & S. Mail S. S. Co. v. Pennsylvania, 122 U. S. 326, 30 L. ed. 1200, 1 Inters. Com. Rep. 308, 7 Sup. Ct. Rep. 1118; Leloup v. Mobile, 127 U. S. 640-645, 32 L. ed. 311313, 2 Inters. Com. Rep. 134, 8 Sup. Ct. Rep. 1380; American Fertilizing Co. v. Board of Agriculture, 11 L. R. A. 179, 3 Inters. Com. Rep. 532, 43 Fed. 609; Re Spain, 14 L. R. A. 97, 3 Inters. Com. Rep. 738, 47 Fed. 208; San Bernardino v. Southern P. Co. 107 Cal. 524, 29 L. R. A. 327, 40 Pac. 796; State v. Scott, 98 Tenn. 254, 36 L. R. A. 461, 39 S. W. 1; Laurens v. Elmore, 55 S. C. 477, 45 L. R. A. 249, 33 S. E. 560; Re Wilson, 10 N. M. 32, 48 L. R. A. 417, 60 Pac. 73; State v. Northern Pacific Exp. Co. 27 Mont. 419, 94 Am. St. Rep. 824, 71 Pac. 404. The defendants cannot be held criminally responsible. 1 Bishop, Crim. Law, 1892 ed. §§ 317, General, and Washburn, Bailey, & The agent with power to sell, if he violates his instructions, and, instead of selling to an actual purchaser, makes the purchase himself, in effect puts himself in a position of allowing his principal to treat the matter as a sale, or to treat it as a nullity, when all the facts are known. Looked at from the standpoint of the consignor, it is an absolute nullity. Gilbert v. Hewetson, 79 Minn. 333, 79 Am. St. Rep. 486, 82 N. W. 655; Holmes v. Cathcart, 88 Minn. 213, 60 L. R. A. 734, 97 Am. St. Rep. 513, 92 N. W. 956; Tilleny v. Wolverton, 46 Minn. 256, 48 N. W. 908; Bain v. Brown, 56 N. Y. 285; Leathers v. Canfield, 117 Mich. 277, 45 L. R. A. 41, 75 N. W. 612; Where no discrimination is made between the business that originates outside of the state and that which originates in the state, the courts have always upheld the right to require licenses of persons engaged in any business the regulation or control of which comes within the proper exercise of the police power of the state. Prentice & Egan, Commerce Clause of Fed. Const. p. 279; Emert v. Missouri, 156 U. S. 296, 39 L. ed. 430, 5 Inters. Com. Rep. 68, 15 Sup. Ct. Rep. 367; Parsons v. Missouri, 166 U. S. 719, 41 L. ed. 1187, 17 Sup. Ct. Rep. 997; Preston v. Finley, 72 Fed. 858; Re May, 82 Fed. 425; Oliver Finney Grocery Co. v. Speed, 87 Fed. 413; Anniston v. Southern R. Co. 112 Ala. 566, 20 So. 915; Carrollton v. Bazzette, 159 Ill. 293, 31 L. R. A. 522, 42 N. E. 837; State v. Wheelock, 95 Iowa, 585, 30 L. R. A. 429, 58 Am. St. Rep. 442, 64 N. W. 620; State v. Montgomery, 92 Me. 439, 43 Atl. 13; Wrought Iron Range Co. v. Carver, 118 N. C. 334, 24 S. E. 352; Schollenberger v. Pennsylvania, 171 U. S. 23, 43 L. ed. 57, 18 Sup. Ct. Rep. 757. When the court has once held that the business of selling grain upon commission is one that is subject to the regulation of the police power of the state, it is placed within the list of business which may be regulated by the state law, even though it be interstate wholly. Plumley v. Massachusetts, 155 U. S. 461, 39 L. ed. 223, 5 Inters. Com. Rep. 590, 15 Sup. Ct. Rep. 154; 12 Rose's Notes (U. S.) p. 659. The commission merchant who does his business through an agent makes himself responsible for the omissions of the agent as fully as if everything done by the agent had been done by himself. The question of intent in such laws is wholly immaterial. People v. Roby, 52 Mich. 577, 50 Am. Rep. 270, 18 N. W. 365; People v. Blake, 52 Mich. 566, 18 N. W. 360; People v. Snowberger, 113 Mich. 86, 67 Am. St. Rep. 449, 71 N. W. 497; Smith v. Ayrault, 71 Mich. 487, 1 L. R. A. 311, 39 N. W. 724; State v. Hartfiel, |