
    [Pittsburg,
    October 1824.]
    IRVINE against BUCKALOE.
    IN ERROR.
    
      A receipt was offered by tbe plaintiff signed M. and I., one of whom. M,, was alleged to have been the agent of the defendant, to prove which, a witness was called, who testified, that he had done business with M., as the agent of the defendant one or two years after the date of the receipt, and that the defendant, about the same time, said that M. was his agent, and did business for him. The court below admitted the receipt, at the same time instructing’ the jury, to take it into consideration, if they believed the witness, but if they disbelieved him entirely, to reject it. Held, that this was error.
    Declarations made to the plaintiff' by the alleged agent of the defendant, in respect to the concerns of a third person, without proof that those declarations were made , in the course of the business of the agency, or that the defendant had in some manner given to the alleged agent authority to bind him in the. matter referred to, are not evidence.
    ON error to the Court of Comnjpn Pleas of JVarren county, it appeared from the bill of exceptions accompanying the record, that Isaac Buckaloe, the defendant in error, brought an action against the plaintiff in error, Callender Irvine, for goods sold, work • and labour, and-money had and received; to which the defendant pleaded non assumpsit, and payment.
    On the trial, the plaintiff offered in evidence a receipt, in these words:
    
      (<Brokersiown, Feb. 10th, 1817: — Received, from Mr. Isaac Buckaloe, seventy-five and-a half bushels of oats; being the share of oats that is coming to General Irvine for rent from the place.”
    Signed, Moore & Irvine,”
    
    The reading of this receipt being objected to, the plaintiff gave in evidence the deposition of Nathan Howard, which stated, that in 1817 or 1818, Robinson J\. Moore did some business with him, the deponent, as the agent of the defendant in that business; that he understood in general terms, from Jeremiah Dunn and General Irvine himself, that he was the agent of the defendant; but he never understood from General Irvine any thing more than that when he, the deponent, paid the particular sum on the 4th of April, 1818, he might pay it to Robinson R. Moore; and that two years after the receipt, the defendant told the deponent, that Moore was his agent and did business for him.
    After this deposition had been read, the court permitted the x’eceipt to be given in evidence, with this instruction, that if the jury credited the testimony of Nathan Howard, to take the receipt into consideration; hut if they discredited it entirely, to reject it, and not consider it in making up their verdict.
    The plaintiff afterwards olfei’ed in evidence the testimony of Daniel Hengfuirt, to prove a conversation heard by him, between the plaintiff and Robinson R Moore, respecting the buildings on the farm of Anne Irvine, which the plaintiff had occupied. To the admission of this evidence, the counsel for the defendant objected; because it appeared, from the deposition of Robert Andrews, that the said farm did not belong to the defendant, and because it did not appear, that Robinson had any authority to rent the said farm. The court, however, admitted the evidence, with the same observations which were made in reference to the receipt, and sealed a bill of exceptions on both points.
    
      Seldcn and Farrelly, for the plaintiff in error.
    
      Galbraith and Forward, for the defendant in error.
   The opinion of the court was delivered by

G-ibsoN, J.

The points are miserably stated in this bill of exceptions; but the case appears to be this: At some stage of the cause, the plaintiff offered in evidence, a receipt for grain delivered as the share of the defendant, which was signed “ Moore & Irvine,” one of whom {Moore) was alleged to have been the agent of the defendant; to prove which, a wilfiess was called, who testified he had done business with Moore as the agent of the defendant, one or two years after the date of the receipt; and that the defendant, about the same time, had told him that Moore was his agent, and did business for him. On this, the court admitted the receipt, instructing the jury at the same time, to take it into consideration in forming their verdict, if they believed the evidence of the witness: but if they disbelieved him entirely, to reject it. It is plain, this direction was wrong. The competency of the receipt depended on something beyond the mere credibility of the witness, whose evidence, if frue, by no means conclusively proved the existence of the agency at the time material to the question. It proved an admission by the defendant, that it existed a year or two after-wards; but it did not necessarily follow, that it existed at the date of the receipt. The admission, however, was a circumstance to be left to the jury, with a direction to regard the receipt as competent evidence, or otherwise, as they should be satisfied or hot, of the existence of the agency when the receipt was signed.

The remaining exception is still more decisively fatal. A witness was called to prove the particulars of a conversation between the plaintiff and the alleged agent, in regard to buildings erected on the farm of a third person, which the plaintiff had occupied; and the declarations of the agent were admitted, to charge his supposed principal, under the same direction in respect of the credibility of the witness in proving the agency, which was given to the jury on the preceding point. This direction, besides being obnoxious to the remarks which have already been made, was erroneous, in not requiring the jury to be satisfied, that the declarations were made in the course of the business of the agency; and, that they were so made, does not appear by the bill of exceptions, hut rather the contrary. The conversation was, it seems, not about the business or concerns of the defendant, but of a third person; and before he could be charged by the declarations of his agent in this particular, it should have appeared that he had undertaken to manage the affairs of such third person, and had confided them, along with his own, to the. agent; or had, in some shape or other, given the latter authority to render him personally liable, in the particular matter with which the plaintiff sought to charge him; nothing of which appears in the bill of exceptions, and we are therefore bound to reverse the judgment on both points.

Judgment reversed, and a venire facias de novo awarded.  