Sleeper v. Union Insurance , 61 Me. 267 ( 1872 )

Appleton, C. J.

E. K. Alexander being indebted to the plaintiff on a note dated Nov. 2, 1866, for $1,500, pajmble in one year, gave him at that date a mortgage on his quarter of the schooner Abbic Brackett.

On the 10th of the same November, Alexander effected an insurance of $2,000 on the schooner Abbie Brackett “ on account of whom it may concern, loss payable to him . . . against a total loss only.”

The vessel was lost within the lime specified in the policy, with all on board, among whom was E. K. Alexander, the master.

Annie 1). Alexander, the widow of E. K. Alexander, was appointed administratrix on the estate of her husband, commenced a suit upon the policy to which reference lias been had, and obtained judgment for a total loss, which the defendants have paid.

As the policy was “ on account of whom it may concern,” this plaintiff claims that it was effected for his benefit, and this was the question presented to the jury for their determination.

To maintain the issue on his part the plaintiff offered to prove the insolvency of Alexander’s estate. An objection being made, it was withdrawn. The offer was again made and the record showing the insolvency was put in, subject to objection, with the accompanying remark, that “ it is simply the declaration of the administrator that the estate is insolvent.”

This testimony in any aspect of the case was inadmissible. The declarations of the administratrix were no more competent than the declarations of any one else. The solvency or insolvency of the estate of Alexander had no tendency to prove the issue on trial. But it did have a tendency to show that the plaintiff’s remedy against the estate would be of little value. It is obvious that able counsel might make effective use of this fact adversely to the defendants. Nor can we believe that its admission ■would have been thus strenuously and persistently urged unless the counsel thus urging supposed it would have an effect upon the jury favorable to his client. Its admission would hardly have been thus repeatedly insisted upon, if regarded as unimportant.

The plaintiff claims that Alexander was his agent and effected the policy m suit for his security. To prove this, Thomas Frye was called, who testified as follows: “ Capt. Alexander called to see me and expressed thanks for the assistance I had offered. He told me he obtained the money of Capt. Sleeper. He offered to me his thanks and offered to pay me. He said he had ordered or effected the insurance for $2,000 for Capt. Sleeper’s benefit, for security in addition to the mortgages, and carried out the details in regard to the land. He said he had given a mortgage bill of sale and a mortgage deed.”

This evidence was received against the objections of the counsel for the defendants. It is difficult to perceive upon what grounds' it can be regarded as admissible.

Were Alexander living, this testimony of his declarations would not have been admissible except to contradict statements of his as a witness. The fact of agency is not to be proved by the statements of an agent asserting his agency. There must be proof of agency before the declarations of an agent are admissible, and then only such are received as are strictly part of the res gestee. Hazeltine v. Miller, 44 Maine, 177. The general and well-settled rule that the declarations of an agent while in the transaction of the business confided to his charge, are binding upon the principal. But his recital of past transactions are hearsay and are not admissible. Burnham v. Ellis, 39 Maine, 320. The same rule applies to prospective intentions. The declarations as testified to by Frye are either the statements of what Alexander had done or proposed doing. The plaintiff, if Alexander was his agent, could not have been prejudiced by the conversations of his agent before he had entered upon the business of his agency, or after its termination, when the objects for which he had been appointed were accomplished. Neither can such recitals of past events or proposed undertakings be used by him as testimony against these defendants.

As the evidence shows that the policy was never in Alexander’s possession and, indeed, had not been issued at the time of this con-' versation, these declarations can hardly be deemed admissible as those of a perspn in possession, for he never had possession of the policy or knew that one had been issued.

These declarations were offered, not merely to negative the title of Alexander, but to establish one in the plaintiff. These declarations are the merest hearsay, and upon no recognized principle of evidence, can they be deemed evidence between third parties.

Exceptions sustained.

Kent, Walton, Danforth, and Virgin, JJ., concurred.