
    Joseph Kingsley vs. David Slack.
    K. and S., living in different towns, made a contract, that K. should sell and convey to S. a certain piece of land, in consideration of which S. should deliver to K. a certain promissory note and a yoke of oxen, and that the deed of the land should be sent, and the note and oxen returned by a brother of K. K., in an action brought for a breach of the agreement, offered evidence that the deed being sent accordingly, and the messenger having returned with the note, but without the oxen, he was inquired of by K. why he did not bring the cattle, and replied, that S. wanted to use them a week or ten days, and would then return them or the money. This evidence was objected to, but admitted as a declaration accompanying an act, and another witness subsequently testified to the same facts without objection. S. called a witness to testify, that he told the messenger that he would not give any thing but the note for the land. This evidence was objected to, but admitted by the judge, who instructed the jury, that the declarations of the messenger were not evidence of the truth of any thing related by him, but that the fact that certain things were said by him to S., when he went to S. for the purpose of delivering the deed, might be considered by the jury, so far as it tended to explain or account for the conduct of the parties. It was held, that the evidence was improperly admitted, even for the qualified purpose stated, and though similar evidence had been previously given for K. without objection.
    The declaration in this case alleged, that the plaintiff, on the 22d of April, 1844, by a contract then made between him and the defendant, bargained and sold to the defendant a certain tract of land in Southampton, in consideration of the defendant’s giving up to the plaintiff a note of hand which he held against the plaintiff, and also conveying and reselling to the plaintiff a certain pair of working oxen, which the plaintiff had before sold the defendant; that the defendant, in' consideration that the plaintiff would make, execute, and deliver to him a deed of the land, promised the plaintiff that he would deliver up and surrender to him the note and cattle; that the plaintiff made and delivered the deed accordingly, and the defendant thereupon surrendered the note; but that the defendant neglected to deliver up the oxen to the plaintiff, and, though specially thereunto requested, had ever since neglected and refused so to do.
    At the trial before Howr, J., in the court of common pleas, the plaintiff", in order to prove the delivery of the deed, called several witnesses, all of whom testified, that the contract was made at the plaintiff’s house in Westhampton; that the defendant, who then lived at Goshen, mentioned to the plaintiff his brother William Slack, as a suitable person by whom to send the deed and to bring back the note and cattle; that in a day or two the deed was sent by him; and that being inquired of by the plaintiff, on his return the next day, why he did not bring back the cattle, he replied that the defendant wanted to use them for a week or ten days, and then he would send them back, or the money.
    The defendant objected to the admissibility of this evidence for any purpose; but the plaintiff insisted that it was admissible as evidence of declarations accompanying an act, and it was so admitted.
    
      Another witness subsequently testified to the same facts without objection.
    The defendant, in order to show that the contract for the land did not include the cattle, called his daughter as a witness, who testified, that when William Slack brought the deed to her father’s house, she passed through the room where her father and William were sitting ; and that, without being able to state all their conversation, or that she heard it all, she heard the defendant tell William Slack that he would not give any thing but the note for the deed of land. She was proceeding to state what William said in reply, when the plaintiff objected to the admissibility of any such declarations, unless the defendant would say, that they related to the delivery of the deed, and the giving up of the note and cattle. But the presiding judge admitted the evidence, without requiring any such statement from the defendant. The witness then answered, that William replied to the defendant, that the plaintiff told him, if he could not get more for the land, to take the note.
    The plaintiff again objected, that the whole statement ought to be excluded, inasmuch as there was no evidence that William Slack had any authority to trade or exchange, or vary the terms of the contract, and the evidence objected to could not prove such authority.
    The jfidge declined to exclude the evidence, but instructed the jury, that the fact of an agency could not be established by the declarations of the supposed agent; that the statements of William Slack were not evidence of the truth of any thing related by him; but that the fact, that certain things were said by him to the defendant, at the time when he was at the defendant’s for the purpose of delivering the deed and taking the note, might be considered by the jury, so far as it tended to explain or account for the conduct of the parties.
    No evidence was offered for the purpose of proving that this conversation was communicated to the plaintiff; nor was it stated by the witness, that any deed was delivered on the one side, or note on the other, or any papers produced or seen, or act done, while she was in the room with the defendant and William Slack.
    The jury having returned a verdict for the defendant, the plaintiff excepted.
    
      G. P. Huntington and W Allen, Jr., for the plaintiff.
    
      G. Delano, for the defendant,
    cited 1 Greenl. Ev. § 113; Woods v. Clark, 24 Pick. 35, 39; Shaw v. Stone, 1 Cush. 228, 243.
   Fletcher, J.

The defendant maintained in his defence, that the cattle were not included in the contract, and that he did not agree to deliver them. To establish this defence, the defendant offered evidence, that he told William Slack, the messenger, at the time the note was delivered to him, that he, the defendant, would not give any thing but the note for the deed of the land; and that William replied, that the plaintiff told him, if he could not get more for the land, to take the' note. The admission of this evidence was resisted by the counsel for the plaintiff, but it was admitted by the court.

It is quite plain, that the whole of this evidence was inadmissible. So far as appears, William Slack was intrusted simply to perform the service of. carrying the deed and bringing back the note and cattle. He had no authority to act for or represent the plaintiff, in any way, in regard to the bargain. His own declaration cannot be taken as proof of authority. William Slack having no authority to say any thing, or to do any thing, in behalf of the plaintiff, in regard to the contract between the plaintiff and defendant, what the defendant said to William, and what William said to the defendant, in the absence of the plaintiff, can, upon no principle, be admitted to affect the rights of the latter.

But it was said in argument, that if the admission of this evidence was erroneous, the error was corrected by the judge in his charge to the jury. The judge, to be sure, instructed the jury, that the statements of William Slack were not evidence of the truth of any thing related by him; but he also said, at the same time, that the fact that certain things were said by him might be considered by the jury, so far as it tended to explain and account for the conduct of the parties.

If what was said by him might be considered by the jury, to explain the conduct of the defendant in not sending the oxen, this would seem to be giving full effect to his statement, that the plaintiff told him if he could not get more for the land to take the note. The conduct of the defendant, in not sending the oxen, and of the plaintiff in receiving the note without the oxen, was explained and accounted for, by the statement of William to the defendant of what the plaintiff told him. This was giving a decisive effect to incompetent and inadmissible evidence.

There was a question as to the admissibility of certain evidence, on the part of the plaintiff, upon which, though not necessary to be now determined, the court have formed an opinion ; which, it may be convenient to the parties to state at this time. The evidence in question is as to the conversation between the plaintiff and William Slack, on the return of the latter from the defendant’s with the note, but without the oxen. It is very clear, that what was then said by the plaintiff to William, and by William to the plaintiff, when the note was delivered to the plaintiff without the oxen, and in the absence of the defendant, was wholly inadmissible. William was in no sense the agent or representative of the defendant, except simply to deliver the note. The plaintiff, therefore, could have no right to give in evidence his own sayings to William, in the absence of the defendant, to affect the rights of the defendant. That the plaintiff cannot, for his own benefit, make use of his own declarations or sayings, in the absence of the defendant, is altogether too clear for controversy. ’

Nor is there any principle of law which warrants the admission of the declaration of William to the plaintiff. This declaration was not connected with nor made a part of any act, which William was authorized to perform. It was merely an unauthorized declaration, unaccompanied by any authorized act, made in the absence of the defendant, and tending to affect injuriously the rights and interests of the defendant. The familiar principles of law and sound reason, and the principles of justice, forbid the admission in evidence of such a declaration. Suppose the defendant had in fact delivered the oxen to William, to be delivered to the plaintiff, but instead of delivering them to the plaintiff, William had converted them to his own use, and to conceal his own misconduct, had made this declaration to the plaintiff, it would most manifestly be unjust to permit it to go in evidence against the defendant, in a suit for damages for not delivering the oxen. In truth, the plainest principles of law and justice require, that the declaration of William, under the circumstances, should not be admitted in evidence to the prejudice of the defendant. But the error in admitting this evidence on the part of the plaintiff would not justify the admission of incompetent evidence on the'part of the defendant.

Verdict set aside cmd new trial ordered.  