Strawbridge v. Spann , 8 Ala. 820 ( 1845 )

COLLIER, C. J.

The witness, both upon the preliminary examination, and throughout his entire deposition, disavowed all interest in the result of the suit; the facts disclosed by him do not contradict his disavowal ; consequently, the decision of the Court, in favor of his competency, we think was correct.

It was clearly competent to inquii’e whether an account shown to the witness was not charged to the defendant by the dix-ec-tions of the latter, and if so, whether it was not correct. He may from memory, without reference to any written memoran-da, have been prepax'ed to vouch its correctness ; and even have stated each distinct item without looking into the account. His answer was equally unexceptionable, viz: that the account was copied from the defendant’s books, and that he believed it to be correct. The fact that the charges wei’e made in the defendant’s book of accounts, should be regarded .as presumptive evidence of their justness as against him, and an expression of the witness’ belief that this presumption was well founded, even if predicated of the premises, without any knowledge possessed by him, was certainly allowable ; it could dó no harm, 'as it was a mere affirmation of what was a legal inference,, in the absence of opposing proof. , ,

The additional question proposed, viz: whether any more, and what hauling was done by plaintiff’s team, and whether any, and how much more of the earnings of it, were paid to the defendant than the witness had already stated, we think was unobjectionable. The facts sought to be elicited wer e prima facie admissible, and the question cannot be said to be leading. It does not affirm the existence of a fact, but merely directs the attention of the witness, that he may state the truth of the case fully, rather than suggest to him what answer he is desired to make. [Greenl. Ev. 481.]

We are at a loss to conceive how the defendant could be prejudiced by the witness stating who was the teamster. It may have been a fact that could not materially aid the deliberations of the jury upon the matters litigated; but it was at least harmless in the aspect in which the case is presented, and does not furnish a warrant for the reversal of the judgment.

It is laid down generally,-that whatever an agent does in the lawful prosecution of the business intrusted to him by his principal, is the act of the latter. And “ where the acts of the agent will bind the principal, there- his representations, declarations, and admissions respecting the subject' matter, will also bind him, if made at the same time, and constituting part of the res gestae [1 Story on Ag. 124 to 129.] But the admission or declaration of an agent binds only when it is made during the continuance of the agency, in regard to a transaction then depending, et dam fe-net opas. It is because it is a -verbal act, and part of the res gestae, that it is admissible at all. [Greenl. Ev. 125 to 134 ; 1 Phil. Ev. (ed. of 1839,) 99,100, and the cases cited by these authors.] The fact of agency, it is said, must be first established, before the declarations of a supposed agent can be received. For this purpose the admissions of the principal are evidence against himself; or the fact may be proved directly by the agent. [2 Phil. Ev. C- & .H’s Notes, 188,189.] In Langhorn v. Allnutt, 4 Taunt. Rep. 519, Gibbs, Justice, said, "When it is proved that A. is agent of B., whatever A. does, or says, or writes, in the making of a contract as agent of B., is admissible in evidence, because it is part of the contract which he makes for B., and therefore binds B.; but it is not admissible as his account of what passes.” In Johnson v. Ward, 6 Esp. Rep. 48, which was an action on a policy of insurance, the affidavit of a person, stating that he subscribed the policy on behalf of the defendant, (which affidavit the defendant himself had previously used, on a motion to put off the trial,) was, under the particular circumstances, properly admitted as proof of agency. The defendant having used the affidavit for such purpose, must be considered as having made and adopted its contents. But the single circumstance, that the affidavit purports to have been made by a person as agent, would not be sufficient proof of his being invested with that authority.

In Scott v. Crane, 1 Conn. Rep. 255, the question directly arose whether, and under what circumstances, the acts or declarations of an agent are admissible. The Court said, “ it is clear that the doings or concessions of an agent, when acting for the principal, are binding on the principal; but to let in the proof of them, it is necessary that the agency should be first proved. The defendant having offered no proof of the agency, it was proper for the Court to refuse evidence of the acts done by him.” To the same effect are Lessee of Plumsted, et al. v. Rudebagh, 1 Yeates' Rep. 502; Lessee of James v. Stookey, et al. 1 Wash. C. C. Rep. 330.

We have been thus particular in stating the law in respeet to the admissibility of the declarations of an agent; but as it is unnecessary, we will not conclude ourselves by deciding that the fact of agency cannot be established by the acts or declarations of the agent; that question will be left for future adjudication.

The plaintiff’s witness explicitly denied that in purchasing the wagon and team from the defendant, and in the sale made to him he acted as the plaintiff’s agent. Now although his acts and declarations might not be admissible to prove the fact of agency, yet they are competent evidence to show that he had made contradictory statements, and thus impair or destroy the effect of his testimony upon this point.

It was certainly allowable for the plaintiff to withdraw the account which he offered, when he ascertained he could not establish it by satisfactory proof; and the account being withdrawn, the assistant proof was no longer before the jury ; this was all we understand he proposed to do. But the refusal of the Court to permit the defendant to prove what the plaintiff’s witness said as to his agency, is an error; and for this, the judgment is reversed, and the cause remanded.