Sumner v. M'Neil

Dewey, J.

The defendants, in addition to other grounds of defence, contended that if the sheep were once the property of the plaintiff, she had parted with her interest, through the agency of Hiram 0. Stevens, whom she had authorized to sell them on her behalf, and that the defendants had purchased them of said Hiram 0., who was so constituted her agent. Now it is quite obvious that these facts, if it was competent to the defendants to introduce them, constituted a good defence to the actions. Whatever tended to show that the plaintiff had legally parted with her property in the sheep, negatived the allegation, in her writ, of property in herself, and of course defeated her right to recover. The proposed defence would also advance a step further, and establish title in the sheep in the defendants.

But the plaintiff insists that the defendant is precluded from this line of defence. To sustain this position, she relies upon the evidence disclosed by the case, that when the sheep were demanded of the defendants, each of them said that “ they had bought them of said Hiram 0., on his representation that they were his property.”

In considering this case, we are to look at the question in issue between the parties. The plaintiff had alleged the property in the sheep to be in herself, and a conversion by the defendants. The defendants denied these allegations, and the rules of evidence allowed them to maintain their defence upon independent and even contradictory grounds; that is, they might offer evidence to support various differing grounds of defence, and if any one was satisfactorily established, that would authorize verdicts in their favor. This was not a case where the party, to whom a declaration was made, had acted upon the faith of it, in such manner as to authorize him to say to a defendant, ‘having declared the source of your title to be through Hiram 0. Stevens, selling in his own right, you are estopped now from showing that you purchased the sheep of him as agent for the plaintiff’ The plaintiff’s right to recover for the sheep was as effectually defeated by a sale by Hiram C. Stevens, as agent, if he was duly authorized to act as such, as though they had been originally sold by her to Hiram C., and he had subsequently, in his own right, sold them to the defendants; or as"though the property had originally belonged to said Stevens, and not to the plaintiff. We do not see any objection to this line of defence, or to the competency of the evidence offered in support of it. It was properly submitted to the jury, and was by them deemed sufficient to establish the agency of Hiram G. Stevens, to act in behalf of the plaintiff in making the sale of the sheep to the defendants.

A further question was raised upon the ruling of the presiding judge, excluding the evidence of the declarations of Hiram C. Stevens, made after the sale, “ that he had no right to sell the sheep, and that they belonged to the plaintifl.” This ruling may be supported on various grounds.

1. The declarations of a vendor, after the sale, are not competent evidence as against the vendee. While the party has the apparent ownership, and alleges title in himself to the property, his declarations, tending to defeat his own title, may be admissible; but the moment he parts with his title, his subsequent declarations are incompetent to defeat the interest of one who has purchased of him. If it were not so, the vendee would be subject to the grossest injustice. He might be divested of his property upon the mere declarations of the vendor, not under sanction of an oath. With the sale of the property, the interest of the vendor in the article sold ceases, and from that period he stands, in relation to it, like all other strangers, as to any effect to be given to declarations tending to defeat the title of the purchaser.

2. If treated as a case of agency on the part of Hiram C, Stevens, the declarations of an agent, made after the sale, are incompetent. His declarations are admissible as a part of the res gestee. His subsequent declarations would be inadmissible even to charge his principal. 8 Met. 44. Much more should they be rejected, when offered by the principal to defeat the conveyances made by his professed agent, by showing that the act was unauthorized.

3. We do not perceive why Stevens might not be called by the plaintiff as a witness. If he might be so called, then the proposed evidence was merely hearsay, and the offer of it nothing more than an attempt to introduce, without the sanction of an oath, the naked declaration of an agent to defeat his acts done under color of such agency. This evidence was properly rejected.

Exceptions overruled.