Wilson, Douglass & Co. v. Sherlock , 36 Me. 295 ( 1853 )

Shepley, C. J. —

If a sale was made by the plaintiffs to the defendant, it was made, and the flour was delivered on board of a vessel at New York, on December 3, 1844, and the transactions respecting the sale were then closed.

Testimony appears to have been introduced for the plaintiffs to prove, that Henry P. Casey, professing to act as agent for the defendant, gave directions respecting the sale. In an account made out on December 5, 1844, rendered to the defendant and subscribed by Casey, the defendant was charged under date of December 4, 1844, with half amount of bill of flour W. D. & Co., and upon proof of Casey’s handwriting, it was received as testimony for the defendant, against the objection of the counsel for plaintiffs.

It is insisted, that it was part of the res gestes, and as such legally admissible. That term can be properly applicable only to transactions, with which the plaintiffs were connected, while the negotiation, sale and delivery were incomplete. The plaintiffs do not appear to have been in any manner connected with the accounts between Casey and the defendant ; nor does that account appear to have been made until after the business respecting the sale and delivery of the flour had been completed.

If that account be considered as a paper not connected with those transactions, it is only a declaration made by Casey in writing, without the sanction of an oath ; without the knowledge of the plaintiffs, and without any opportunity for an examination.

The rights of the plaintiffs could no more be affected by it, than by an oral declaration made by Casey in thdr absence.

It is alleged to have been unimportant, and that the plaintiffs without its introduction would have failed to obtain a verdict.

The Court cannot determine what effect it may have had upon the minds of the jurors, to induce them to return a verdict for the defendant. It cannot be regarded as immaterial testimony. Exceptions sustained, Verdict set aside and new trial granted.

Rice, Hathaway and Appleton, J. J., concurred.