Stenhouse, McCauley & Co. v. Charlotte, Columbia & Augusta Railroad , 70 N.C. 542 ( 1874 )

Ejsade, J.

The plaintiff alleges that he made a contract with the defendant, through his agent, Pegram, to transport his cotton to market at a given price, and that the defendant failed to comply with the contract, by reason of which plaintiff was injured, &c. The defendant denied that Pegram was authorized to contract, or that he did in fact contract.

The power in Pegram to contract seems to be clear. He was the local agent at the depot from which the plaintiff’s cotton was to be shipped, and was in the habit of making contracts for transportation with the plaintiff and others, and the telegrams, which are a part of the ease, show that he was authorized to contract. We agree with his Honor in that.

Plaintiff swore upon the trial that he did make the alleged contract with Pegram. Pegram, for the defendant, swore that he did not. The plaintiff then introduced two witnesses, McCombs and Elms, who testified that after the contract was alleged to have been made, they heard Pegram say that he had made a contract with plaintiff. The testimony of McCombs and Elms was clearly competent to contradict and discredit Pe-gram, bujj it was not competent for the purpose of proving the contract. And yet it was introduced generally. The defendant could not object to the competency of the declarations off. Pegram, because they were competent to discredit him, but-the defendant had the right to have the jury instructed, thatr while the declarations of Pegram, as proved by McCombs, were competent to discredit him, yet they were not competent to prove the contract. And the defendant asked for this instruction and his Honor refused to give it. In 1 Green. Ev. sec. 113, note 2 on page 134, it is-said, that “whether the declaration or admission of the agent made in regard to a transaction already passed, but while his agency for similar objects still continues, will bind the principal, does not appear to have been expressly decided, but the weight of authority is in the negative.” Numerous cases are cited. That is our case. We have decided the same question in the same way at this term, in the case of v. N. C. R. R. Co.

There is error.

Per Curiam. ' - ’Venire de novo..