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tion for the jury;" citing Indianapolis, C. & L. R. Co. v. Hamilton, 44 Ind. 76.

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.

Again, the same author, at § 97, p. 494, vol. 3, says: "Where the view of an approaching train is obstructed, though the company is not required by statute to sound a whistle or ring a bell when its train approaches a highway, yet, where such appliances are available, a failure to use them is negligence;" citing cases. "Where an approaching engine is concealed from the view of persons approaching a highway crossing at a place of much travel, regardless of the statute, the duty of the company to operate its train at a moderate rate of speed, and to give the usual signals of its approach, is more imperative than at a place of less danger;" citing authorities.

"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.

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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

when Farley was in the middle of the bridge. It is true that in the midst of the opinion the court said that the rule applicable to grade crossings has no application to under and over crossings at every street crossing in a city. "In fact," continued the court, "such crossings are constructed on the theory that, by adopting them, travel is unobstructed, and danger to travelers on parallel and crossing streets is lessened by the absence of the screams of steam whistles necessary to give warning at grade crossings." The court then said that Pennsylvania R. Co. v. Barnett, 59 Pa. 259, 98 Am. Dec. 346, and other cases cited, are all applicable to a different state of facts, and concludes by saying: "Our decision is based solely on the circumstance of an accident at a properly constructed overhead bridge at one of the many street crossings of a steam It was further held in that case that the railroad in a city." After an examination question of negligence in failing to give no- of all the authorities cited, we think the tice should be left to the determination of true rule deducible therefrom is that, if the the jury. Counsel for plaintiff in error cites place is dangerous, then the company is onthe case of Farley v. Harris, 186 Pa. 440, erated with the duty of warning travelers on 40 Atl. 798, which case, it is claimed, is a the highway of the approach of its trains, but modification of the rule laid down in Pennsyl- whether the place, as a matter of fact, is vania R. Co. v. Barnett, 59 Pa. 259, 98 Am. dangerous, is a question for the determinaDec. 346. In that case it appeared that the tion of the jury. The law imposed no abplaintiff was crossing an overhead bridge solute duty upon the company to give notice when his horse became frightened, ran away, at this particular crossing. That duty was and injured the plaintiff. The grounds of only required, as matter of law, in the event recovery alleged in that case were two: the jury should find that danger was to be (1) That the whistle had been negligently reasonably apprehended at this conjunction sounded when the locomotive was immediate- of underpass and overhead bridge. The ly under the bridge; and (2) that no whistle charge of the trial judge in this case made had been sounded by the locomotive on ap- the duty of the company absolute to give proaching this overhead bridge. The court warning of the approach of the train to the said that the rule applicable to grade cross-crossing. Said the court: "It was the duty ings that it is negligence in railroad com- of the defendant company to give plaintiff panies not to give warning on approaching reasonable warning of the approach of the them-has no application to under and over train by the usual signals, so as to put crossings at every street crossing in a city. plaintiff upon his guard on his approaching The court, in concluding its opinion, says or passing under the track." There was no that the cases cited by the appellant (Penn- such absolute duty resting upon the comsylvania R. Co. v. Barnett, 59 Pa. 259, 98 pany either at common law or by statute, Am. Dec. 346, and other cases) are all appli- but its duty in this respect was entirely decable to a different state of facts than are pendent upon the question of fact whether presented here. 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.

bility of the company, repudiated the doctrine 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 Pennsylvania R. Co. v. Barnett, 59 Pa. 263, 98 Am. Dec. 346.

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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.

MINNESOTA SUPREME COURT.

STATE of Minnesota, Respt.,

v.

Robert H. EDWARDS et al., Appts.

(......Minn.......)

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 subse-
quent sale at a profit.
3. The statement in the criminal com-
plaint that defendants wilfully and unlaw-
fully 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 merchants in that
locality.

*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

Rep. 144.

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.

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*Headnotes by LEWIS, J.

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. A. 54; Kimball v. Ranney, 46 L. R. A. 403; 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.

done wilfully and unlawfully, the state cannot disregard this feature of the formal charge as surplusage, and omit to prove it. Felton v. United States, 96 U. S. 699, 24 L. ed. 875; Potter v. United States, 155 U.

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 relations.

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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. 259264, 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 v. Allison, 4 Minn. 25, Gil. 11; Grumley v. Webb, 44 Mo. 444, 100 Am. Dec. 304; Foun

tain 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. 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.

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.

|

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. Butterworth, 1 Exch. 425; Pollock v. Stables, 12 Q. B. 765; Goodenow v. Tyler, 7 Mass. 36, 5 Am. Dec. 22.

Wright v. Vineyard M. E. Church, 72 Minn. 78, 74 N. W. 1015; Anderson v. Johnson, 74 Minn. 171, 77 N. W. 26; Robb'ns v. 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; Marsh v. Fulton County, 10 Wall. 676-684, 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.

it.

Law v. Cross, 1 Black, 535, 17 L. ed. 185; Hoyt v. Thompson, 19 N. Y. 218; Indianapolis Rolling Mill v. St. Louis, Ft. S. & W. R. Co. 120 U. S. 256,30 L. ed. 639, 7 Sup. Ct. Rep. 542; Clews v. Jamieson, 182 U. S. 461483, 45 L. ed. 1183-1194, 21 Sup. Ct. Rep. 845.

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.

By reason of partial transit of the car through Wisconsin, the transaction lost its character of domestic commerce, and became interstate.

Pacific Coast S. S. Co. v. Railroad Comrs. 18 Fed. 10; Sternberger v. Cape Fear & Y. 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.

Being such, the state had no power over

Robbins v. Taxing District, 120 U. S. 489492, 30 L. ed. 694-696, 1 Inters. Com. Rep. 45, 7 Sup. Ct. Rep. 592; Welton v. Missouri, 91 U. S. 280, 23 L. ed. 349; State Freight Tax Case, 15 Wall. 280, 21 L. ed. 163; Mobile County v. Kimball, 102 U. S. 697, 26 L. ed. 240; Bowman v. Chicago & N. W. R. Co. 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 merchant of a pretended purchase made by himself.

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 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; Philadel-structively within the state of Minnesota at the time of the transactions

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 con

Hopkins v. United States, 171 U. S. 578, 43 L. ed. 290, 19 Sup. Ct. Rep. 40.

phia & 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.

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.

1 Bishop, Crim. Law, 1892 ed. §§ 317, 892; State v. Mahoney, 23 Minn. 181; State v. Robinson, 55 Minn. 169, 56 N. W. 594; Barnes v. State, 19 Conn. 398; People v. Hughes, 86 Mich. 180, 48 N. W. 945; Com. v. Stevens, 153 Mass. 421, 11 L. R. A. 357, 25 Am. St. Rep. 647, 26 N. E. 992; Ståte v. Heck, 23 Minn. 549; 1 McClain, Crim. Law, 1897 ed. § 188; United States v. Beaty, Hempst. 487, Fed. Cas. No. 14,555.

Prentice & Egon, 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.

Messrs. Freeman P. Lane and John R. Bane also for appellants.

Messrs. W. J. Donahower, Attorney General, and Washburn, Bailey, Mitchell, for respondent:

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.

&

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.

39 L. ed. 223, 5 Inters. Com. Rep. 590, 15 Plumley v. Massachusetts, 155 U. S. 461, 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.

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, 497; Smith v. Ayrault, 71 Mich. 487, 1 L. 117 Mich. 277, 45 L. R. A. 41, 75 N. W. 612; | R. A. 311, 39 N. W. 724; State v. Hartfiel,

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.

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