setting aside of an award which through mistake of the arbitrators fails to express their real decision. The duty is as clear as that which requires this court on rehearing to correct an opinion which through inaccuracy of expression fails to state the decision intended to be rendered. A failure to set aside the award in this case would work manifest injustice. It would impose on plaintiff for a period of nearly twenty years a measure of compensation for the use of the bridge which the arbitrators did not intend to impose.

Defendant is entitled to use the bridge for the purpose desired and plaintiff is entitled to reasonable compensation for such use. The award being set aside, the machinery provided for the determination of the compensation has failed. It would be a reproach to the law if the rights of the parties should thereby lapse. It is the province of courts of equity to provide remedies in such cases and it is in this view of the case that we have fixed a measure of reasonable compensation for the use of the bridge sought by the defendant.

19. The petition is supported by an affidavit setting up the amounts paid by defendant during the year 1916 for use of the bridge, and the number of cars operating thereover. These facts can have no bearing on the question of whether the award should be set aside, but they may be considered on the hearing in the Circuit Court hereinafter provided for.

20. Strenuous objection is offered to the provision in our former opinion that defendant should pay twenty per cent of the interest charge on the cost of the bridge. Plaintiff cited a number of authorities to the effect that when a court is called on to determine compensation for a common user the junior company will be charged with half the cost or interest charge if but two carriers. are using the facilities, or with one third thereof if

there are three users. This was squarely held in Central Trust Co. v. Wabash etc. Ry. Co., 29 Fed. 546, a case twice before the Federal Supreme Court under different titles: Joy v. St. Louis, 138 U. S. 1 (34 L. Ed. 843, 11 Sup. Ct. Rep. 243), and St. Louis etc. R. Co. v. Wabash R. Co., 217 U. S. 247 (54 L. Ed. 752, 30 Sup. Ct. Rep. 510. The same principle is announced in Grand Avenue Ry. Co. v. People's R. Co., 132 Mo. 34 (33 S. W. 472); Grand Ave. Ry. Co. v. Citizens' Ry. Co., 148 Mo. 665 (50 S. W. 305); Grand Ave. Ry. Co. v. Lindell Ry. Co., 148 Mo. 637 (50 S. W. 302); Toledo Consol. St. Ry. Co. v. Toledo Electric St. Ry. Co., 6 Ohio C. C. 362; 3 Ohio C. D. 493, 511. The last case is approved and followed in Toledo Elec. St. R. Co. v. Toledo and Maumee etc. R. Co., 6 Ohio C. D. 578. For the reasons stated in our former opinion we do not think that the rule announced in these authorities should be applied rigidly in this case, but the above authorities should be followed to the extent of imposing on the defendant a substantial share of the capital charge. In the Omaha bridge cases the federal courts charged each user of the bridge an annual rental of $45,000 without investigation into the volume of the traffic. As was pointed out on the argument, plaintiff is chargeable with interest on its investment in this bridge even though through flood or strike the railroads cease to operate over it. If defendant is to use this facility in order to reach a traffic-producing territory it should bear a substantial portion of the interest charge on the capital invested. These are the reasons why it seemed to us that defendant should be charged with twenty per cent of the interest charge in this case. The petition makes the point that there has been no argument on this particular question. It may be that argument could throw further light upon it. The question is so im

portant that we are disposed to give every opportunity to the parties to present their views. So much of the opinion as fixes this particular charge will therefore be withdrawn and the cause remanded to the lower court with instructions to hear argument and determine the share of the interest charge to be imposed on defendant on the principles announced in this and the former opinion. In other respects the former opinion is adhered to and the petition for rehearing is denied.

MODIFIED AND REMANDED. FURTHER MODIFIED ON PETITION FOR REHEARING AND REHEARING DENIED.

Argued January 25, reversed and remanded March 6, rehearing denied March 27, 1917.

ULBRAND v. BENNETT.*

(163 Pac. 445.)

Principal and Agent-Powers of Attorney-Construction.

1. A power of attorney "to settle my claim for damages against" certain persons does not authorize the agent to disburse money for the principal, and if the agent does so, the principal can recover as for money had and received.

[As to construction of powers of attorney and whether limited to property then owned by the principal, see note in 35 Am. St. Rep. 593.]

Principal and Agent-Powers of Attorney-Construction.

2. The receipt of money by one to the use of another does not of itself empower the former to apply the money on a debt due him from the latter.

Money Received-Actions-Instructions.

3. Where money was received by one defendant for the use of plaintiff, another defendant, who participated in the use of a portion of such money, was liable for the improper disposition of that portion only.

*On implied powers under power of attorney to transact business, see note in 4 L. R. A. (N. S.) 843. REPORTER.

Physicians and Surgeons-Duty of Physicians.

4. Any transaction between a physician and patient inuring to the advantage of the former will be carefully scrutinized, and stricter control over it will be exercised than were there no confidential relation.

Physicians and Surgeons-Duty of Physicians.

5. A physician is not a guardian for his patient, and if he merely had knowledge of the action of a third person against whom the patient seeks relief without participating in such action, he is not liable equally with such third person.

Principal and Agent-Powers of Attorney-Construction.

6. Where plaintiff set up a power of attorney to settle his claim, and alleged that the agent had exceeded the power, it was valid in so far as its terms went, and the plaintiff could not repudiate it, and at the same time claim the moneys received by the defendant under it.

From Multnomah: WILLIAM N. GATENS, Judge.

This is an action by D. B. Ulbrand against J. E. Bennett and Alan Welch Smith, in which plaintiff recovered judgment and Alan Welch Smith alone appeals. REVERSED AND REMANDED.

Department 1. Statement by MR. JUSTICE BUrnett. The complaint alleges in substance that the defendants agreed with the plaintiff about March 30, 1914, that they would receive from the Louis A. Hicks Company money due by that concern to the plaintiff here, safely keep the same and pay it to him on his demand. Then follows this averment:

"That on or about the 30th day of March, 1914, the said Louis A. Hicks Company, through its officers and agents, did pay over to said defendants and each of them, the full sum of $3,300.00, which payment was made for and to the use and benefit of said D. B. Ulbrand, the creditor of said Louis A. Hicks Company, as hereinbefore set out, and in accordance with the agreement made by the said defendants to hold and safely keep the said money to and for the use of said D. B. Ulbrand, in the said sum of $3,300.00 as aforesaid."

It is stated that the plaintiff demanded from the defendants and each of them the sum of $3,300 of which they have paid only $2,100, leaving due a balance of $1,200.

The answer interposed by the defendant Smith consisted of denials alone. The other defendant traverses everything in the complaint except the corporate character of the Hicks Company and the marital relation between the plaintiff and his wife. Affirmatively he alleges that Ulbrand received an injury while in the employment of the Hicks Company and

"that on the 26th day of March, 1914, said plaintiff made, executed and delivered to the defendant herein, a written power of attorney, giving and granting unto defendant full power and authority to settle, for and on behalf of plaintiff, with the said Louis A. Hicks Company a claim against said company for damages held by plaintiff, and from the amount received to settle and pay all bills contracted by plaintiff on account of his said injuries, and to retain therefrom a reasonable compensation, for himself."

He goes on to say in substance that with the personal approval of plaintiff the claim was settled for $3,300; that acting under the power of attorney the defendant Bennett for and on behalf of plaintiff paid out sundry bills as follows: To the defendant Smith for medical services, $500; The Pernot Laboratories, $10.00; Good Samaritan Hospital, $161.15; and to the plaintiff $2,100, totaling $2,771.15, and with the consent of plaintiff retained the balance of $528.85 for his own services in making the settlement.

The reply denies the execution of any power of attorney and especially one for the purpose of paying bills contracted by the plaintiff, or to retain any compensation for the defendant Bennett. It also denies on information and belief that any payments were made