after making the foregoing statement, delivered the opinion of the court.

Lenhart paid for and received a binding contract to be carried 5,000 miles if he complied with the conditions on his part. By *63clause 2 he agreed not to present mileage coupons for passage on trains unless he embarked at a station where there was no ticket office,, or where the ticket office was closed. On its part the company covenanted that it either would maintain a ticket office at every station, and have that ticket office open a proper length of time before each train, and ready to supply him with exchange tickets for mileage coupons, or would accept the coupons on the trains. The agent at Tiffin had inadvertently returned to headquarters his supply of exchange tickets. But for eight weeks his superior officer had failed to send them back or supply others. This is not a case where the ticket agent furnishes an intending passenger with the wrong ticket,, which the passenger carelessly accepts, and then demands that the conductor shall take his explanation as paramount to the company’s rules. By its contract the company had agreed that coupons should or should not be good on trains, depending on the existence or nonexistence of certain facts when the holder of the coupons duly presented them at the station. To the conductor was delegated the authority to ascertain the facts for the company. He was not a mere-automaton. He was as much bound to exercise his intelligence and judgment in determining Benhart’s right to be on the train as in deciding whether money tendered him was counterfeit, or a seemingly regular ticket was forged. The company could not withdraw that authority, and command the conductor “not to accept any mileage on trains,” and then justify its ejection on the ground that the conductor was simply obeying instructions. But the conductor did not rest upon his general instructions. He communicated with his superior officer, and was directed to eject Benhart unless he paid a cash fare. The breach of the contract did not arise at Tiffin. Nothing-occurred there except the establishment of the facts on which accrued Benhart’s right to have coupons accepted on the train. After Benhart was rightfully on the train, the breach was committed. The company, therefore, is liable for ejecting Benhart at Gibsonberg, and for refusing to permit him to re-enter the train. Railroad Co. v. Winter’s Adm’r, 143 U. S. 60, 12 Sup. Ct. 356, 36 L. Ed. 71; Railroad Co. v. Russ, 6 C. C. A. 597, 57 Fed. 822; Railroad Co. v. Pauson, 3 7 C. C. A. 287, 70 Fed. 585, 30 L. R. A. 730.

Benhart paid for and presented a legal ticket. To the proposition that he could not stand upon his rights, but was compelled, for the sake of saving the company from the consequences of its threatened breach of contract, to pay his fare again in cash, if he had it, and then sue for its recovery, we do not yield our assent. After a breach of contract has been committed, the injured party is not allowed to aggravate his damages, and is required to use reasonable diligence to minimize them. But beforehand one is not forced to abandon his legaL right under a contract, and waive the damages that may arise from its breach, in order to induce his adversary not to proceed as he wrongfully claims is his right.

Benhart was permitted, over the company’s objection, to detail occurrences between him and the ticket agent at Gibsonberg after the train from which he had been ejected had departed. Benhart presented his mileage book to the agent and demanded an exchange *64ticket. The agent had none. Lenhart then read to the agent clause 2 of the contract, and requested him to have the conductor of the next train issue an exchange ticket. The agent declined to take up the matter with the conductor. Lenhart was also allowed to testify to his differences with the conductor of the next train, how he tendered coupons and insisted upon his right to be carried, how the conductor refused to accept coupons, and demanded a cash fare, and how Lenhart paid it .under protest. The transactions counted on in the declaration were complete when the first train left Gibsonberg. Lenhart’s subsequent controversies with the ticket agent at Gibsonberg and with the conductor of the second train were incompetent. This evidence might have supported an action for the recovery of the cash-fare paid under protest, but was utterly irrelevant to the causes of action pleaded and proven. It is impossible to determine from the record how influential this evidence was in getting the jury to return the verdict they did.

It was also prejudicial error to permit Lenhart to testify, over the company’s objection, to the oral negotiations between himself and the officers of the company looking to a settlement. The ruling is sought to be upheld on the ground that the evidence tended to sustain an allegation in the declaration that the company, after full notice of the conductor’s intentionally malicious acts, ratified and adopted them. But there was no evidence that the conductor acted maliciously. Lenhart himself testified that he had no reason to believe that the conductor was not acting in good faith. For ydiat the conductor did without actual malice, and within the scope of his employment, the company was liable without notice, and subject to an action without demand. Along the same line Lenhart was permitted to introduce in evidence a series of letters between himself and officers of the company on the matter of a compromise. If this were the only error assigned, it might be doubtful, on account of the uncertainty of the record with respect to the company’s objections and exceptions thereto, whether the judgment should be reversed.

Further error .was committed in allowing Lenhart to give hearsay in regard to losing a sale at Toledo.

The judgment is reversed, with the direction to order a new trial..