The court erred in admitting in evidence the declarations made by Marx after the sale, that he had sold the mule as agent for the defendant, Heyman. The fact‘that he was such agent could not be proved by his own declaration thus made. 2 Greenleaf on Evidence, 63, note B.
*198It would have been better if the court had excluded the testimony even after it had been admitted than to instruct the jury as .it did do, that the fact of agency could not be proved by the declaration of the agent. But since this instruction was given, and in view of the fact that Marx himself was introduced as a witness and denied having made such statement, and that much testimony was introduced on both sides upon the question of his agency for Heyman, we think it manifest that no injury resulted to the appellant on the whole facts disclosed. The evidence, though not admitted for that purpose, would have been competent as going to the credibility of the witness Marx, and since the court told the jury that the evidence was incompetent to establish the fact of agency, we think that the judgment should be