Demeritt v. Meserve , 39 N.H. 521 ( 1859 )

Bellows, J.

The point at issue between the parties was, whether the plaintiff put in the second wheel under a contract to do so, if the other proved to be insufficient; or under a contract, express or implied, on the part of the defendants, to pay what it was worth. The bill made by Spinney was-offered as an admission that the wheel was put in under a contract to pay what it was worth. To render it competent, it should appear that Spinney was the agent of the defendants, acting within the scope of his authority, and while the transaction was depending. The point in controversy was the character of the contract, and, to make Spinney’s declarations admissible, it should appear that he was the agent of the defendants, and authorized to make it. If so authorized, his statements, made at the time, dum fervit opus, would be competent.

The evidence in this case, however, as reported by the judge who tried the catise, does not show any authority to make such a contract. The facts, that Spinney occupied the mill, that he was authorized to hire help at the defendants’ expense, to assist Currier in putting in the wheel, and that the defendants paid the bills made by Spinney for such help, are not sufficient to prove that Spinney was authorized to contract with the plaintiff for the wheel; nor could the jury, on these facts, or any facts reported, find such authority. The evidence did not legally tend to prove such agency.

The admissions of Spinney, then, cannot be regarded as the admissions of the defendants. Woods v. Banks, 14 N. H. 101, 113, 114; Webster v. Clark, 30 N. H. 245; 1 Gr. Ev., secs. 113, 114; Story on Agency, secs. 134-139; Stiles v. Western Railroad, 8 Met. 44; Fairlee v. Hastings, 10 Ves. 123, and cases cited in note (a); see 2 Cow. Phill. Ev., note 182, 180-189; Haven v. Brown, 7 Gr. 421.

The verdict must, therefore, be set aside, and a

New trial granted.