[Tennessee River Transportation Co. v. Kavanaugh Bros.] tion company at Decatur, with authority to represent the company at that place, or had been so held out by one having authority to bind the company. Whether he had transacted any business for the corporation at any other place could shed no possible light on that inquiry. The city court did not err in disallowing that question to the witness Hobbs. Even if Hobbs was proven to have been agent of the corporation when the alleged contract with Kavanaugh Brothers was entered into, this would not authorize an admission made by him to be given in evidence against his principal, unless that admission was made in company with, and at the time of the act of agency it was intended to explain. But the question was clearly admissible for the purpose of laying a predicate for the introduction of impeaching testimony. There was no error in this ruling. All the rulings on the introduction of testimony are free from error. A by-law of defendant corporation was put in evidence, in the following language: "The directors shall appoint a general manager, whose duty it shall be to look after the general interest of the company, and all business transactions pertaining to the general management of the business, under the direction of the board of directors." It was proved and not denied that from the fall of 1888, and until after the barge was returned to Decatur in a damaged condition, Farnum was the general manager of the defendant corporation. Each of the plaintiffs, giving their testimony separately, testified that Farnum, while so acting as general manager, and before the agreement affecting the barge was entered into, personally introduced Hobbs to them, informing them that the latter was "agent of the Tennessee River Transportation Company at Decatur, and said he was going to make his headquarters at Decatur, and attend to their business; that any transaction we might have with Hobbs would be entirely satisfactory, and approved by the company; that he was the authorized agent, and that we could deal with him as such." Another witness, a business man at Decatur, testified that Farnum introduced Hobbs to him as agent of the company at Decatur, using almost the identical language testified to by the Kavanaugh brothers. But there was testimony [Tennessee River Transportation Co. v. Kavanaugh Bros.] in conflict with this, some of which denied that Hobbs was agent, while other witnesses only disputed the extent of his authority. Of course, so far as material, this presented a question for the jury. It was proved and not denied that defendant employed barges in connection with its boats, in transporting freight on the Tennessee river; and it owned several barges. We do not understand the contract, on which the present suit is sought to be maintained, as strictly a contract of sale and purchase. It was a hiring of the barge at so much per day, to be returned in good order. True, if the barge was not so returned, it was, if the testimony of plaintiffs be believed, to be paid for at an agreed price. But this was nothing more than a previous agreement of the amount of damages to be paid, in the event the contract to return was broken. This presents a different question from that of an absolute bargain and purchase, and also from what is known as a conditional sale. Pressing, present need might justify the hiring, while a promise to return in good condition, or pay an agreed forfeit, might be the most favorable terms on which the use of the barge could be obtained. Peril and the necessity for immediate action may, in some conditions, supply the place of express authority. The undisputed testimony in this case is that the defendant corporation made free use of barges in the conduct of its regular business, and we can conceive of many emergencies in which the want of them might be so pressing, as not to admit of delay. We think we are in safe bounds when we declare that in such emergency any agent, not in communication with the constituted governing board, may, in the interest of conservation, exercise powers not expressly conferred. This power must be prudently exercised, and must not be carried beyond the real, or apparent necessity.-2 Morawetz Corp., §§ 585-588. We have indulged in the foregoing remarks, as introductory to what we have to say of charge 17, given at the instance of plaintiffs, and excepted to by defendant. We hold, that under the by-law copied above, Farnum, the general manager, had authority to appoint an agent "to make contracts to bind the company ;" and if he did appoint Hobbs such agent, and so informed plaintiffs; or, if he represented to plaintiff's that he had ap [Florence Gas, Electric Light and Power Co. v. Hanby, Receiver, &c.] pointed him with the powers set forth in their testimony; and if Hobbs made the contract as set forth in the complaint, and the defendant, or its agents, injured and ruined the barge; and if the use of a barge was within the scope of defendant's business operations, then plaintiffs were entitled to a verdict. In announcing this principle, we take into the account the nature of the business the defendant corporation was engaged in, covering, as that business did, a large extent of country and necessarily calling for action in emergencies, when a consultation with the governing board would be impracticable. Such intendments might not be indulged, if the corporation had a defined, fixed, stationary place in which its business operations were performed. Many charges were given at the instance of plaintiffs, and many refused which were requested by defendant. These several charges were asked in writing, and the rulings were severally excepted to. We consider it unnecessary to comment separately on these many rulings. They are all covered and justified by our decision on the former appeal, 93 Ala. 324, 9 So. Rep. 395; and by what is said above. The judgment of the city court is affirmed. 101 15 Florence Gas, Electric Light and Power Co. v. Hanby, Receiver, &c. Bill in Equity to enforce a Mechanic's and Materialman's Lien, and to compel the Specific Performance of a Contract. 1. Multifariousness.-A bill in equity is not rendered multifarious by the addition of a prayer for alternative relief, when the averments of such bill are not duplex, but are appropriate and sufficient to warrant relief under either of the special prayers. Multifariousness can not be predicated solely upon the variant prayers with which a bill may conclude. 2. Appointment of a receiver upon a bill filed to dissolve a corporation.-When a bill filed by stockholders to dissolve a corporation, as provided by statute (Code, § 1683), contains averments which show a necessity for the appointment of a receiver for the corporation pending the proceedings for dissolution, a chancery court may appoint such receiver. 123 637 101 15 127 509 127 613 128 232 [Florence Gas, Electric Light and Power Co. v. Hanby, Receiver, &c.] 3. Powers of receiver appointed pending proceedings for the dissolution` of a corporation.-When a bill which seeks the dissolution of a corporation contains averments showing special grounds for the appointment of a receiver pending such proceedings, the receiver to be appointed by the court is authorized, not only to execute and perform the existing contracts of the corporation, but also to enter into and carry out new contracts in behalf of the company. 4. Appointment of a receiver; can not be questioned in collateral proceedings. On a bill filed by the receiver of a corporation, who was acting under an appointment made after the dissolution of the company (Code, §§ 1683-86), the validity of his former appointment as receiver, pending the dissolution proceedings, can not be assailed; said attack being made in a collateral proceeding. 5. Power of receiver of dissolved corporation to carry out existing contract.-While a receiver, appointed under section 1686 of the Code has no authority, as a general rule, to carry out and perform existing contracts of the dissolved corporation, and can only be empowered to perform such conditions as are prescribed by said section, he may, nevertheless, complete the execution of an existing contract, when such execution is necessary to the discharge of the duties and powers expressly imposed and conferred by such statute. 6. "As soon as possible" in a contract means within a reasonable time. The stipulation in a contract for the completion of work "as soon as possible," requires the work to be completed within a reasonable time, or within such time as is reasonably necessary, under the circumstances, to do what the contract required to be done. 7. Waiver of right to rescind a contract.—The right to rescind a contract for unreasonable delay in the completion of the work agreed to be done is waived and lost by the acceptance of the work done in its incomplete condition, and the devoting of the same to the objects for which it was built. 8. Specific performance of a contract; when not enforceable.-When, on a bill filed by the receiver of a dissolved corporation, seeking the specific performance of a contract made between such corporation and another company, it is shown that in the contract the corporation, of which the complainant is the receiver, agreed to construct an electric light plant for the defendant corporation, and to pay off debts due from the defendant corporation, some of which were secured by a mortgage, and that the defendant agreed to issue first mortgage bonds to the construction company, to secure the debt arising from the performance of the work stipulated, with leave to take the bonds in absolute payment after a certain time, a specific performance of such a contract can not be decreed, when the bill contains no averment that the debts due from the defendant to third parties, which were agreed to be paid by the construction company, had been paid, nor an averment of an offer, or even a readiness or willingness to pay such debts; the failure of the construction company to perform its part of the contract by paying the debts, making a specific perform [Florence Gas, Electric Light and Power Co. v. Hanby, Receiver, &c.] ance of the contract by the defendant, by the delivery of first mortgage bonds, impossible. 9. Partial performance of work, and acceptance thereof; sufficient for establishment of mechanic's and material-man's lien.—Although a contract, as originally made, was not severable, and there could have been no recovery for work done under it, except upon full performance of the contract, still, there has been a part performance of the contract, and the owner has accepted it in its approximately completed condition, and is using it for the objects for which it was built, the law implies a promise on his part to pay what the work done is reasonably worth, and the contractor is entitled to enforce this debt by a mechanic's and material-man's lien. 10. When right to a mechanic's and material-man's lien not affected by act of February 12, 1891.—When a contract is entered into, and the work and materials for which a lien is sought to be enforced were done and supplied, and a bill to enforce such lien is filed, prior to the passage of the act of February 12, 1891, (Acts 1890-91, p. 578), providing for mechanic's and material-man's lien, the right to the enforcement of such lien is not affected bysaid act. 11. When authority of a corporation is to be presumed.--When a bill is filed by the receiver of a dissolved corporation for the enforcement of a mechanic's and material-man's lien, and the specific performance of a contract for certain work done, it is to be presumed, in the absence of any averment to the contrary, that the construction company was authorized by its charter to enter into and perform the contract involved in said suit. APPEAL from the Chancery Court of Lauderdale. The bill in this case was filed by S. M. Hanby, as receiver of the Southern District Telegraph & Electric Company,against the Florence Gas, Electric Light & Power Company, and prayed to have enforced upon the property of the defendant a mechanic's and material-man's lien in favor of the plaintiff, and also for the specific performance of a contract entered into by the two corporations. The material facts of the case are sufficiently stated in the opinion. The respondent demurred to the bill of complaint, and assigned the following grounds: 1st. The bill shows that S. M. Hanby was appointed receiver of the Southern District Telegraph & Electric Company upon the filing of a bill by the stockholders of said corporation for its dissolution under sections 1683 et seq. of the Code of Alabama; and that upon his appointment, the said receiver was authorized and empowered to collect, by suit or otherwise, all of the debts of said corporation, |