
    Horace Allen versus Horace Duncan.
    *• witness testified, that the plaintiff came to his store with the defendant ar.d directed him to furnish the defendant with goods, saying I, or vie (by which the witness understood the plaintiff and his partner) will be responsible; that the goods were furnished and charged to the plaintiff and his partner j that afterwards, m a general settlement of accounts between the plaintiff and the witness, the plaintiff paid for the goods and informed the witness, that his partner had nothing to do with the matter 5 that the plaintiff was not present when the goods were charged to the partnership, nor did the witness know that he knew in what manner they were charged, until payment was due and the witness spoke to him about it, and the witness’s impression was, that that was the time when the plaintiff made this last declaration. It was held, in an action by the plaintiff alone against the defendant, to recover for the money paid for the defendant, that this declaration of the plaintiff was admissible in evidence as part of the res gestee: the rather, as it was made in the ordinary course of business and before any con troversy had arisen, and was apparently against the plaintiff’s interest and the money was actually paid in conformity to the declaration.
    Assumpsit. Plea, the general issue. At the trial before Wilde J., the plaintiff claimed to recover of the defendant for money paid for him for certain goods, which he alleged the defendant had received on his responsibility at the store of Samuel Gray. The defendant denied that the goods were furnished by the plaintiff for the defendant, and alleged that they were delivered at Gray’s store by the plaintiff and Luke Watson for the benefit and account of one William Duncan. The defendant further contended, that if the goods were sold to him and not to William Duncan, yet the defendant was liable not to the plaintiff alone, but to the plaintiff and Watson. The plaintiff offered in evidence the deposition of Gray containing the following statement. “ About the 14th of June 1822, two men came to my store together with Horace Allen. Allen remarked to me, here is a Mr. Duncan, who wants dye stuffs. The Christian name of Duncan, according to my impression, was Horace. Allen said he would be responsible, or that toe (by which I understood Horace Allen and Luke Watson, who I knew were connected in business) would De responsible, and the goods I then sold to Duncan I charged to Allen and Watson. The same Mr. Duncan who came into the store with Allen, selected the goods and took them from the store. Afterwards, September 9, 1823, in a general settlement of accounts between Allen and myself, Allen paid to me ^le bill of goods purchased as aforesaid by Duncan, amounting to $ 142-42. Watson personally gave me no authority to charge the goods to him and Allen.” Then followed these words, which were objected to by the defendant, as improper evidence to go to the jury, — “ and three or four months after they were so charged, Allen informed me that Watson had nothing to do with the matter,” — but the judge overruled the objection and permitted them to go to the jury. The concluding part of the following sentence was objected to by the defendant, but was admitted. “ Allen was not present when the above-mentioned goods were charged to him and Watson, nor do I know that he knew in what manner they were charged until payment was due, and I spoke to him about it, and it is my impression that was the time when he informed me that Watson had nothing to do with the matter.'1'’ Other evidence was introduced by both parties, and the case was submitted to the jury with instructions from the judge, that if they found the goods were purchased by William Duncan, or were purchased on the responsibility of Allen and Watson, their verdict should be for the defendant, but otherwise for the plaintiff. They found a verdict for the plaintiff. If the testimony objected to was improperly admitted, a new trial was to be granted.
    
      Sept. 23d.
    
    
      Sept. 20th.
    
    
      Bates and Dewey, for the defendant,
    cited Jacobs v. Putnam, 4 Pick. 108 ; Merrill v. Sawyer, 8 Pick. 397 ; Carter v. Gregory, ibid. 168.
    
      Morris and Bowdoin, for the plaintiff,
    cited Milford v. Bellingham, 16 Mass. R. 108 ; Pool v. Bridges, 4 Pick. 378.
   Shaw C. J.

delivered the opinion of the Court. The only question submitted to the Court is, whether evidence was rightly admitted of the declarations made by the plaintiff to the witness Gray, that the contract made by him with Gray was made in his individual capacity, and not in behalf of himself and his partner Watson.

It was very truly stated in Pool v. Bridges, 4 Pick. 378, that it is difficult to lay down any precise general rule, as to the cases in which declarations are admissible, as part of the res gestas, and when they must be rejected as the mere asser ■ tions of the party. Here the action having been brought ny the plaintiff alone, and not by him and Watson his partner, it became a material question, whether the goods were procured from Gray, by Allen in his individual or partnership capacity. Gray had already testified, that when Allen came to the store with Duncan for the goods, the witness did not know whether he said I will be responsible, or we will be responsible. It was therefore left uncertain, in which capacity he acted. Gray at first charged the goods to the copartnership ; but it is shown by his testimony to have been done, upon conjecture, without any express authority, and without the knowledge of Allen; and therefore that circumstance has very little weight in deciding the question. It was undoubtedly competent for Allen to declare, at the time of making the contract, whether he did it on the one or the other account, and such declaration would have been conclusive. Of course, therefore, he might give such declaration in evidence, though his own, as res gestee. Was it too late to do this xvhen the money became due, and before payment ? We think not. The business was still open and in progress. It seems by the evidence, that the bill was then presented, and then Allen first knew that the goods were charged to himself and Watson, and not to himself alone. He then immediately corrected the error, and told Gray that Watson had nothing to do with the matter. This was in effect an act done, a direction to Gray to correct his erroneous entry, to make out the account to Allen alone. And that this ,xvas done accordingly, is rendered probable from the fact that Allen afterwards paid it, by a settlement in which Watson had no concern. It is also of some weight in the consideration, that this declaration was made in the ordinary course of business, before any question or controversy arose which would render the fact material to himself, and that it was apparently against his interest, as it went to charge himself alone, instead of charging himself and another. It is also to be taken in connexion with the fact, that the money was actually paid conformably to this declaration by the plaintiff alone. It was therefore admissible as part of the res gestee.

Motion for neto trial overruled.  