Low v. Perkins , 10 Vt. 532 ( 1838 )

The opinion of the Court was delivered by

Phelps, J.

This case, although somewhat complex, presents in reality but one question for our consideration. It appears that a contract had been entered into by the plaintiff, with certain individuals, as agents or trustees of an association for building a church, for erecting t'he building, upon certain specified terms; and in the course of the trial, it became necessary for the plaintiff to prove, that by agreement of parties the special contract was abandoned, and that he was to be paid for the erection of the building upon a quantum meruit.

To prove this, he offered testimony to prove that one of the agents had said to Morrison, who was associated with the plaintiff in the erection of the building, and to induce him to proceed with the work, that he should loose nothing if he proceeded with it-and, also, that another of the trustees had admitted, that such new contract was made. The case states that there were four or five of these trustees in all. The testimony was rejected by the court below, upon the ground that the concurrence of all the trustees was necessary, to alter the contract, to which the plaintiff excepted.

There can be no doubt that the court did right, in rejecting the testimony upon the ground stated. Where several individuals are associated in a public trust, it is competent for a majority to act, and to bind their principals ; but, in the case of a private trust or agency, the rule is different, and the concurrence of all is necessary. There is another reason why a part of this testimony was improper, and that is, that the testimony was hearsay only. It is a general rule, that the declarations of a person, who is himself a competent witness, shall not be received. I know of no exception to this rule, except when the declarations themselves are to be regarded as facts, and constitute a part of the res gesta. The declarations of a person in possession of real estate may be received to explain and give character to his possession, but there the declarations are tire fact to be proved, and will give character to the possession, whether true or false. So the declaration of an agent, while acting for his principal, and which are a part of the res gesta, may be proved. But in this case the admission of the trustee is not of that character, nor was he the agent of these parties. Had the suit been against the association, and the trustee had been one of them, possibly his admission would be pertinent, as the admission of the party. But, as between these parties, the trustees were competent witnesses, and of course their out-door declarations are hearsay merely, and, as such, clearly not admissible.

Judgment affirmed.