
    Woodwell & Co. versus Brown & Kirkpatrick.
    
      Declarations accompanying Acts, admissible in Evidence as part of the res gestee. — Agency, how proven.
    
    1. Where, in a feigned issue to decide the ownership of lumber levied on as the individual property of an agent by his creditors, a witness had testified to paying the proceeds of certain rafts to the agent, it was competent for the plaintiffs, the owners of the lumber, to prove, on re-examination, what the agent said when he received the money, as part of the res gestes.
    
    2. Agency may be shown by proof of the acts of the agent as such, and that they were recognised by his principal; and after the agency has been established, the agent’s declarations, as part of his acts, are competent evidence on the part of the principal.
    3. Contracts, not under seal, made by the agent in the name of his principal (who paid for the lumber contracted for), signed by him as agent, are admissible in evidence, being properly signed.
    4. The answers of the court below to points presented, cannot be assigned for error, where they were substantially in favour of the party complaining.
    Error, to the Common Pleas of Jefferson county.
    
    This was a feigned issue, under the Sheriff’s Interpleader Act, to try the ownership of certain personal property levied on at the suit of Joseph Woodwell & Co., as the property of Henry Brown, but which was claimed by Brown & Kirkpatrick.
    The issue was framed between Brown & Kirkpatrick as plaintiffs, and Woodwell & Co. as defendants. The verdict was for the plaintiffs; whereupon this writ was sued out by the defend- ■ ants.
    All the material facts of the case and the legal points depending thereon, will be found in the opinion of this court.
    The case Avas argued by P. W. Jenlcs for plaintiffs in error, and by Gtordon §• Bro. for defendants.
    November 25th 1862,
   The opinion of the court was delivered, by

Read, J.

The question involved in this feigned issue was whether certain rafts lying at Pittsburgh, and leAÚed upon by WoodAvell & Co. as the property of Henry BroAvn, belonged to him or to Bi-oavu & Kirkpatrick.' BroAvn & Kirkpatrick, as the plaintiffs in the feigned issue, Avere bound to establish the property affirmatively to be in themselves, but the court also held, at the request of the defendants, that if Henry Brown, acting as the confidential agent of the plaintiffs, mingled his OAvn property AA’ith that of his principal, so that it could not be distinguished, the whole would be liable to seizure by his creditors. This enlarged the case to be made out for the plaintiffs, for it then became necessary to establish that Henry BroAvn owned no part of the property levied upon, and this the verdict of the jury finds to have been the fact. The question then is, Avas any error committed by the court, which improperly produced this finding.

BroAvn & Kirkpatrick Avere judgment-creditors of Henry Brown and J. Steele, and upon executions issued against them, sold the real and personal estate of Henry Brown, and became the purchasers at sheriff’s sale. It was alleged by the plaintiffs that BroAvn Avas their agent, and that in all the transactions relating to the property in dispute, he simply acted in that capacity, and had no interest whatever in it or any part of it. The authority not being in writing, this was proved as claimed by the plaintiffs by several Avitnesses and by Brown. William Wilson, who had charge of these and other rafts, and who testified that Brown Avas the agent of the plaintiffs, and that he Avas acting under him for them, and that they owned everything, on cross-examination, Avas asked about paying the proceeds of two rafts to Brown, and having ansAArered the question, the plaintiffs’ counsel proposed to ask the witness what Henry BroAvn said at the time he paid him the money, and the note for the íavo rafts run to market and sold in March 1861, as testified to in his cross-examination, and this as part of the res gestee. This was objected to by the defendants’ counsel, the objection overruled by the court, and the evidence admitted, which proved to be a complete explanation of the whole transaction. Now it is clear that this was legal evidence beyond all doubt, and was simply allowing the witness to narrate the whole of the same transaction, instead of stating a part, which did not give the court and jury its full and true character. There can he still less objection to proving by the acts of Brown that he was their agent, and that he was recognised as such by their reception of lumber and other acts. The contracts were really for and in the name of Brown & Kirkpatrick, and were properly admitted; and so also was the declaration of Brown at the time, as explanatory of his acts in having the timber rafted into the water for the plaintiffs. A primd facie case of agency had been clearly made out, and was afterwards distinctly proved by Brown himself. This disposes of all the errors assigned upon the admission of evidence.

We cannot understand how the court could have answered more favourably the points covered by the fifth and sixth assignments of error, and the same observation applies to the remaining assignments of error. We have examined them carefully, and there is a substantial affirmance of all the defendants’ points, with such qualifications as arose out of the case, and in the last, very properly leaving the question of delivery of the Guthrie & Willis timber, as a matter of fact, to the jury.

Upon the whole, the defendants have no cause of complaint, for every real question in the case was ruled substantially in their favour.

Judgment affirmed.  