
    *Poore v. Magruder.
    January Term, 1874,
    Richmond.
    1. Instructions.—Where an instruction is given to the jury, as to which the evidence furnishes no ground, for the hypothesis upon which it is "based, whether the instruction be correct or erroneous it furnishes no ground for reversing the judgment.
    2. Proof of Agency.—Neither the declarations of a man nor his acts, can be given in evidence to prove that he is the agent of another.
    This was an action of debt in the Hustings court of the city of Tynchburg, and after-wards transferred to the Circuit court of the city, brought by James Magruder, assignee of S. O. Moon who was assignee of John T. Tittle against Charles J. Raine, Wm. A. Poore and three others, upon a bond for $8000 executed by the defendants to John T. Tittle, by him assigned to S. O. Moon and by Moon to the plaintiff.
    The defendants pleaded “payment,” and also “usury;” upon which pleas issues were joined.
    Upon the trial, after the evidence was introduced, the defendants asked the court to give certain instructions to the jury, which are not set out in the record; but the court refused to give them, and instructed the jury as follows:
    If the jury shall believe from the evidence that S. O. Moon purchased the bond in the declaration mentioned, without knowing that the same was made for sale, they should find for the plaintiff; though they should believe from the evidence, that he paid for it a less sum than the amount of' said bond.
    *But if the jury believe from the evidence, that the said Moon had made D. T. C. Peters his agent to purchase said bond at a discount, and that Peters had so purchased it, he, the said Moon knowing that the said bond was simply a bond made for sale, they ought to find for the defendants: But that knowledge that the bond was so made for sale, on the part of Peters, would not defeat the plaintiff’s action, unless he, the plaintiff, had also such knowledge. To the giving these instructions the defendants excepted.
    On the trial the deposition of John T. Tittle, taken by the defendants, was read. He said that he was acting as the friend of Charles J. Raine, and that the bond was-executed to him simply to negotiate a loan for the use of said Raine. That he never saw or communicated with Moon on the subject. That D. C. T. Peters told witness, he (Peters) was acting for Moon. Witness, applied to Peters to obtain Moon’s address, as it was his intention to go to see him, in. order to negotiate the bond. Peters assured him it would be a useless trip. That he Peters could negotiate it by mail; and that Moon would not negotiate directly with any of the parties on the bond, as the rate of interest was above the legal rates, and he desired to make the transaction with a third parts': and witness turned the papers over .to Peters to make the negotiation. Raine received the money, and witness understood the rate of interest to be about one and one quarter per cent, per month. Witness was, not to be responsible on his assignment.
    Peters was examined as a witness by the plaintiff. He stated that a few days before the date of the assignment of the bond by Tittle to Moon, Tittle placed the ' bond in the hands of the witness, who was a broker, of the firm of Peters, Spence & Co. That he had tried to sell it to two or three persons without success, when he learned *that Moon had arrived at Tynchburg, and knowing that he was a moneyed man, he called upon him at the hotel where he stopped and proposed to sell the bond to him, recommending the obligors as being entirely solvent. That Moon told him he would take the bond at a discount of four per cent, from its face value, provided all the obligors would state in writing that they had no offset to it. That witness took the bond and prepared the writing upon the back of it, which is signed by the obligors, gave it to Tittle, and told him to procure the signatures of said obligors to that" writing ; which Tittle did, and brought it to the witness, who delivered it to Moon with Tittle’s assignment. Moon paid the money to Peters, Spence & Co. who paid it, as he believes, to Tittle. That witness had nothing to do with Raine in the 'transaction, and the negotiation was conducted by him with Moon at the instance of Tittle; who paid him a commission for it. That he never represented himself to Tittle as the agent of Moon, but told Tittle what he required to be done before he would purchase the bond. That Moon never paid him any thing for what he did. That witness did not know what was the consideration of the bond; nor did he know it was made for sale.
    The endorsement referred to by the witness, was addressed to Moon, and was as follows: We understand that you are about to trade for this bond: it is given for value received, and we have no o.ffsets against it. This 24th November 1859. And it was signed by all the obligors.
    There was a verdict and judgment for the plaintiff; and the defendant Poore applied to this court for a supersedeas; which was awarded.
    Yancey, Bocock and J. M. Daniel, for the appellant.
    Kirkpatrick and Blackford, for the appellee.
    
      
      Instructions.—On this subject, see monographic note appended to Womack v. Circle, 29 Gratt. 192.
    
   * Anderson, J.,

delivered the opinion of the court.

This is an action of debt brought by the defendant in error against the plaintiff in error and others, upon their joint bond, executed to John T. Tittle, who assigned the same to S. O. Moon, who assigned to the defendant in error, for value received. The bond is for $800, payable twelve months after date, with interest from date. The defendants pleaded payment, and a plea of usury. There was judgment for the plaintiff; and the cause is brought here by a writ of error to that judgment.

On the trial the defendants moved the court to give certain instructions to the jury, not recited in the record, which the court refused to give; but gave certain other instructions, to which the defendants excepted ; and they are set out in the bill of exceptions; and all the evidence in the cause is certified.

The ground for reversal assigned in the petition, is error in those instructions. The principle controverted in them is, substantially : That if the said bond was purchased by Moon at a discount, and that he made D. T. C. Peters his agent to purchase it, and that said bond was made simply for sale, which was known to Peters, that knowledge of Peters, the agent should not defeat the plaintiff’s action, unless he, Moon, (styled plaintiff,) also had knowledge of it. This is believed to be a fair interpretation of the instruction; and whether it be erroneous or not, it is not considered material in the case made by this record. The evidence furnishes no ground for the hypothesis, upon which the conclusion of law was declared. There is no evidence in the cause to support the hypothesis that Peters was the agent of Moon for the purchase of the bond. The statement of Tittle, that Peters told him that he was the agent of Moon, is not evidence to prove the agency. It would be monstrous to hold, that one man was bound by the acts or declarations *of another, un til his agency is established. Neither the declarations of a man, nor his acts, can be given in evidence, to prove that he is the agent of another. 1 Phil. Ev. 5th Amer. Ed., Marg. p. 515, Note 144, and cases cited. Peters would be a competent witness to prove his agency; but it could not be proved by his unsworn declaration. He was a witness, and he swore that he was not the agent of Moon. And the facts to which he testifies, and which are not in conflict with any other testimony in the cause, are utterly irreconcilable with the idea that he was an agent of Moon, in the purchase of the bond. He was undoubtedly the agent of Tittle, to make sale of it; and received from him a commission for selling it. The hypothetical fact, of which the instruction is predicated, not being proved in the cause, nor any evidence adduced tending to prove it, but the contrary being clearly shown, the court is of opinion that the instruction is the declaration of a mere abstract principle of law; and whether right or wrong, is immaterial, and could not have prejudiced the plaintiff in error; and is not, therefore, ground for reversal. Powell on Appellate Proceedings, chap. iv, §§ 42, 43. Upon the whole case, the court is of opinion that the judgment is right, and that the same be affirmed.

Judgment affirmed.  