said contracts." In another communication defendant said: "We demand a continuance of said flat-rate service contracts; and if you render service on said telephones, we shall not, irrespective of any past or future notice from you, to the terms of which we shall not have agreed in writing, pay you for such service, upon any terms other than those contained in said flatrate service contracts." To these communications plaintiff responded that it could continue the service "only at our regular standard rates." To this defendant answered again denying the right of the plaintiff to abrogate said flat-rate contracts, and insisting that it would be unlawful for plaintiff to demand a greater compensation than therein fixed. However, service was continued, and this suit is for $1,890.99, the difference between the amount called for by said flat-rate contracts and the measured service.

Mr. J. J. Darlington and Mr. W. C. Sullivan, for the appellant, in their brief cited:

Alexander v. Alabama Western R. Co. 179 Ala. 484; Armour Packing Co. v. United States, 209 U. S. 57, 72; Baldwin v. Com. 11 Bush, 426; Broughton v. Broughton, 11 Mich. 26; Cohn v. Heimbauch, 86 Wis. 176, 180; Efron v. Stees, 113 Minn. 242; Ford v. MacVeagh, 55 Ill. 122; Gallagher v. Equitable Gaslight Co. 141 Cal. 705; General Lithograph & Printing Co. v. Washington Rubber Co. 55 Wash. 461; Gulf, C'olorado R. Co. v. Hefley, 158 U. S. 98; Heiskell v. Chesapeake & P. Teleph. Co. 44 Wash. L. Rep. 295; Hickey v. Lundy, 168 Mich. 338; Iron Works v. Douglas, 49 Ark. 355; Jameson v. Carpenter, 68 N. II. 63; Ladd v. Rogers, 11 Allen, 209; Louisville & N. R. Co. v. Mottley, 219 U. S. 467; Meyers v. Meinrath, 101 Mass. 366; New Haven R. Co. v. Interstate Commerce Commission, 200 U. S. 361, 381; Perkins v. Hart, 11 Wheat. 237, 252-253; Phoenix Lamber Co. v. Houston Water Co. 94 Tex. 464; Seigel v. Borland, 191 Ill. 112; Sherley v. Sherley, 84 Atl. 165; Sloan v. Wolf Co. 124 Fed. 196; Smith v. Great Northern R. Co. 15 N. D. 195; Southern R. Co. v. Harrison, 43 L.R.A. 385; Texas & P. R. Co. v. Abilene Collon

Oil Co. 204 U. S. 426; Texas & P. R. Co. v. Mugg, 202 U. S. 242; Thomas v. Richmond, 12 Wall. 349, 357; Tietz v. Tietz, 90 Wis. 66; Till v. LaSalle Silk Mfg. Co. 5 Daly, 19; Underhill v. No. Amer. Kerosene Gaslight Co. 36 Barb. 354; Voorhees v. Combs, 33 N. J. L. 496; Walker v. Brown, 28 Ill. 383; Watson v. Gugino, 204 N. Y. 542.

Mr. Charles Cowles Tucker, Mr. Henry B. F. Macfarland, Mr. J. Miller Kenyon, and Mr. Edward S. Bailey, for the appellee, in their brief cited:

Armour Packing Co. v. United States, 209 U. S. 57; Central R. Co. v. Mauser, 241 Pa. 603; Cunningham Mfg. Co. v. Rolograph Co. 30 App. D. C. 524; Georgia R. Co. v. Birmingham Sand & Brick Co. 64 So. 202; Heiskell v. Chesapeake & P. Teleph. Co. 44 Wash. L. Rep. 295; Illinois C. R. Co. v. Henderson Elevator Co. 226 U. S. 440; Kansas City Southern R. Co. v. Carl, 227 U. S. 639 ; Louisville & N. R. Co. v. Maxwell, 237 U. S. 94; New York, N. H. & H. R. Co. v. York & V. Co. 215 Mass. 36; Savannah F. & W. R. Co. v. Bundick, 94 Ga. 775; Smith v. Great Northern R. Co. 15 N. D. 195; Texas & P. R. Co. v. Abilene Cotton Oil Co. 204 U. S. 445.

Mr. Justice ROBB delivered the opinion of the Court:

It thus appears that there was a difference of opinion between this public service corporation and the defendant, one of its patrons, as to whether the flat rate or measured service rate was in force. That question was determined in Heiskell v. Chesapeake & P. Teleph. Co. 45 App. D. C. 138, where it was ruled that such flat-rate contracts were discriminatory and prohibited by said Public Utilities Act. The defendant insists, nevertheless, that plaintiff may not recover because "the law does not create an implied agreement where an express contract already exists." We think this contention is inconsistent with cur ruling in the Heiskell Case. When this service was rendered, the law had fixed the measure of compensation, and the plaintiff was without authority to exact more or receive less.

The service having been rendered to and accepted by the defendant, recovery may be had, as repeatedly held by the Supreme Court of the United States. The decisions on the point are carefully reviewed in Louisville & N. R. Co. v. Maxwell, 237 U. S. 94, 59 L. ed. 853, L.R.A.1915E, 665, P.U.R.1915C, 300, 35 Sup. Ct. Rep. 494, where the court, speaking of the Interstate Commerce Act, said: "The rate of the carrier duly filed is the only lawful charge. Deviation from it is not permitted upon any pretext. Shippers and travelers are charged with notice of it, and they as well as the carrier must abide by it, unless it is found by the Commission to be unreasonable. Ignorance or misquotation of rates is not an excuse for paying or charging either less or more than the rate filed."

The defendant having stated no defense, it follows that the judgment must be affirmed, with costs. Affirmed.

APPEAL; MOTION TO DISMISS; AGENCY; EMPLOYMENT OF SUBAGENT.

1. An appeal from a judgment of dismissal which was not taken within twenty days thereafter, as required by rule 10, cannot be sustained because of the subsequent correction of the journal entry of the judgment on the plaintiff's motion, in order to show that the judgment of dismissal had been entered on a motion for instructed verdiet instead of a motion to dismiss, where there was no attempt made at that time to take an appeal.

2. An agent's promise that if he got a commission for the sale of a prop erty he would give half of it to a subagent does not entitle the latter to recover where the agent received no commission, and it does not appear that he was entitled to one but had refused to claim it.

3. An agent employed to sell real estate has no power to bind his principal by the employment of a subagent.

4. An agency comprehending more than ministerial acts, which is confi dential and entitles the principal to the benefit of the agent's knowledge and advice, cannot be delegated by the agent without the prin

cipal's consent. (ng Fox v. Cohen, 34 App. D. C. 389; Bryan v. Abert, 3 App. D. C. 180.)

No. 3081. Submitted February 7, 1918. Decided March 4, 1918.

HEARING on an appeal from a judgment of the Supreme Court of the District of Columbia in an action to recover commission on a sale of real estate. Affirmed.

The COURT in the opinion stated the facts as follows:

This is a suit to recover a commission for procuring a purchaser for real estate belonging to Louis P. Shoemaker. He died since the institution of the suit, and Abner C. Shoemaker was named as the executor of his estate. Appellant, Lucy V. Sterrett, claims that Shoemaker employed Elijah E. Knott to secure a purchaser for the property, and that the latter, in turn, employed her for the same purpose. She brought action against both. At the close of her statement to the jury, Knott moved to dismiss on the ground that the statement did not disclose a cause of action against him. The motion was sustained and judgment of dismissal entered November 3, 1915. The case proceeded against Shoemaker. On the same day, upon completion of plaintiff's evidence, the jury, upon the motion of Shoemaker, was directed by the court to return a verdict for him. Upon this verdict a judgment was rendered December 11, 1915, and thereupon plaintiff, in open court, noted an appeal, and, on January 6, 1916, filed the required appeal bond, it having been first approved. January 28, 1916, plaintiff moved to correct the journal entry of the judgment in favor of Knott, so as to show that he, instead of moving to dismiss, had moved for an instructed verdict. February 4, 1916, the motion was sustained and the judgment changed accordingly. Knott moves in this court to dismiss the appeal on several grounds. We consider but one, namely, that the appeal was not taken in time.

Mr. S. Herbert Giesy and Mr. John C. Gittings for the appellant.

Mr. Wm. G. Johnson and Mr. Raymond M. Hudson for the appellee.

Mr. Chief Justice SMYTH delivered the opinion of the Court:

The judgment in Knott's favor, as we have seen, was entered November 3. No appeal was taken then. On December 11, 1915, immediately after the entry of judgment in favor of Shoemaker, plaintiff noted an appeal. It is very clear that this had reference solely to the judgment in favor of Shoemaker, which provides "that the plaintiff herein shall take nothing by this action against defendant Louis P. Shoemaker." Knott's name does not appear in the judgment proper or in any part of the journal entry relating thereto. But, assuming that the appcal then noted was from the Knott judgment, it was too late. More than thirty eight days had elapsed since the rendition of that judgment. Rule 10 of this court provides: "No order, judgment, or decree of the supreme court of the District of Columbia, or of any justice thereof, shall be reviewed by the court of appeals, unless the appeal shall be taken within twenty days after the order, judgment, or decree complained of shall have been made or pronounced.”

It would seem, therefore, that we are prohibited from reviewing the Knott judgment unless the change made therein February 4, 1916, makes some difference. We think it does not, because there was no attempt at that time to take an appeal. There was then but one appeal, which was on December 11, 1915, more than twenty days subsequent to the Knott judg

ment.

Knott calls attention to the fact that the time set for settling the bill of exceptions was extended six times, and for filing the transcript ten times, the last extension being December 8, 1916, more than a year after the entry of the judgment in his favor. He says these extensions were given without any notice to him and in violation of the rules of the trial court, and urges this as an additional ground for dismissing the appeal. In view of the conclusion we have reached touching the lateness of the appeal, it is not necessary to decide this