
    
      Martin & Walker vs. Clayton P. Stribling.
    
    1. Where C., an agent, authorized by M. & W. to secure the payment of a debt due them, procured certain sealed notes to be executed by M., the principal debtor, with S, as surety, it was held that the declarations of the agent were admissible in evidence, while he held the notes, and while he was endeavoring to obtain further security.
    2. Held also, in an action upon the notes, that the surety could not be discharged from his contract, because, when he signed the notes, he expected one R, would also sign them, and that M. would deliver to R. certain books and papers as an indemnity for the suretyship; unless it had been shewn, either that S. stipulated with C. that his notes should not have effect, until one or both of these things were done, or that the agent, C. obtained his signature by fraudulently representing that R. would sign the notes, and that M. would place in his (R’s.) hands his books and papers, to be by him collected and applied in payment of the debt.
    
      Before O’Neall, J., at Union, Fall Term, 1842.
    This was an action of debt on notes under seal, executed by M'Cullough and the defendant.
    Davis Caldwell was the agent of the plaintiff, who took the notes; his declarations while he had the notes in possession, were offered and received in evidence.
    
      Henry S. Rodgers proved that M‘Cullough was the original debtor. Caldwell, the agent, proposed to give time, if he (M'Cullough) would give security. He (M'Cullough) applied to the witness in the presence of Caldwell to be his security. The witness (Rodgers) agreed to do so, provided M'Cullough would place in his hands his books and papers, to be by him collected and applied to the payment of this debt. Caldwell afterwards called on him with the notes signed by M'Cullough and Stribling, for the purpose of obtaining biis (Rodgers’s) signature, and told him that Stribling had signed upon the same understanding with M'Cullough which he (Rodgers) had with him,- when he agreed to be his security. Rodgers did not, and would not, sign the notes. The books and papers were never delivered to him by M'Cullough. The case was submitted to the jury, who found for the defendant.
    The plaintiffs appealed, and now moved the Court of Appeals for a new trial, on the following grounds :
    1. Because the Court permitted the declarations of Davis Caldwell to be received in evidence subsequent to the time when the note was executed.
    2. Because the defence was attempted to be made out without producing the best evidence that the case would abmit of.
    3. Because the verdict was' contrary to law and evidence.
    Dawkins, for the motion,
    contended that the declarations of the agent were not admissible after Stribling signed. He cited 2 Starkie on Evidence, p. 60, and Alexander vs. Gibson, 2 Campbell.
    Herndon, contra.
   Curia, per

O’Neall, J.

The general rule is, that “the declarations of an agent, as to acts within the scope of his authority, and when so acting, are as conclusive evidence against the principal, as if he had himself made the admission.”

It was under this rule, and in reference to it, that the admissions or declarations of the agent, Caldwell, were received. He was authorized by the plaintiffs to secure their debt against M'Cullough. In the exercise of that agency, he was present when M'Cullough ploposed to Rogers, and he assented on certain conditions, to be his security. Caldwell subsequently obtained notes executed by M'Cullough and the defendant for the debt, and called on Rodgers to obtain his signature, and then told him that the defendant had signed, on the conditions which he, Rodgers, had made with M'Cullough, when he agreed to become his security. This, it will be observed, was all done and said while Caldwell had the notes, and while he was endeavoring to obtain further security. There can therefore be no doubt that he then stood in the place of the plaintiffs, and that his declarations are their declarations.

Notwithstanding we think the evidence was properly received, yet we are far from believing that it was enough to discharge the defendant from his contract. There are only two points of view in which the defendant could claim to be relieved, viz: 1st. That the notes, (for they were under seal,) were delivered as an escroto, There was nothing in the proof which authorized the belief that they were delivered to Caldwell, not to have effect until Rodgers signed them. That the defendant expected Rodgers would sign as a security, and that M'Cullough would deliver to him books and papers, as an indemnity for their security-ship, I have no doubt, but that he stipulated with Caldwell, that his notes should not have effect until one or both of these things were done, did not appear. 2d. That the agent, Caldwell, obtained his signature by representing that Rodgers would sign the note, and that M'Cullough would place in his (Rodgers’) hands his books and papers, to be by him collected and applied in payment of the debt. The proof did not make out any such fraud on the part of Caldwell.

It was simply proved, that Stribling signed upon the understanding that M'Cullough would place his books and papers in the hands of Rodgers, to be by him collected and applied in payment of this debt. If M'Cullough did not perform this contract, it is the defendant’s misfortune, but not' the plaintiffs’s fault. Nothing to prejudice them can therefore be claimed in this respect.

The motion for a new trial is granted.

Richardson, Evans, Earle, Butler and Wardlaw. JJ. concurred.  