
    DURANT MOTOR CO. OF NEW JERSEY v. GEORGIA-FLORIDA MOTOR CO.
    (Circuit Court of Appeals, Fifth Circuit.
    March 24, 1927.)
    No. 4866.
    1. Principal and agent <®=»22(l) — 'What one says or does is inadmissible to show his agency.
    What one says or does is inadmissible to prove his agency for another, or the scope of such agency, and so is inadmissible to bind the other, in absence of competent evidence to prove his authority to bind him.
    2. Trial 169 — There being no evidence to sustain plaintiff’s claim, verdict should be directed.
    There being no evidence to sustain plaintiff’s claim, based on theory of payment by plaintiff, amount of which it seeks to recover, having been on request by defendant, pursuant to contract between them,- defendant’s motion for .directed verdict should have been granted.
    In Error to the District Court of the United States for the Southern District of Florida; Lake Jones and Rhydon M. Call, Judges.
    Action by the Georgia-Florida Motor Company against the Durant Motor Company of New Jersey. Judgment for plaintiff, and defendant brings error.
    Reversed and remanded for new trial.
    John C. Cooper and John C. Cooper, Jr., both of Jacksonville, Fla. (Cooper, Knight, Adair, Cooper & Osborne and Cyril C. Copp, all of Jacksonville, Fla., on the brief), for plaintiff in error.
    George M. Powell, of Jacksonville, Fla., for defendant in error.
    Before WALKER, BRYAN, and FOSTER, Circuit Judges.
   WALKER, Circuit Judge.

This was an action by the defendant in error, Georgia Florida Motor Company, a corporation (herein called the plaintiff), against the plaintiff in error, Durant Motor Company of New Jersey (herein called the defendant), to recover the amount alleged to have been paid by plaintiff upon request of defendant, pursuant to a contract between them which, as authorized thereby, was rescinded by the defendant. In the trial the plaintiff introduced in evidence a written contract, dated July 20,1923, in the form of a proposition by defendant to plaintiff, signed in the name of the former by L. H. Baker, sales manager, Atlanta district, and accepted by plaintiff. That instrument contained nothing which is relied on to support the claim asserted, and contained the following provisions: “There are no verbal agreements or understandings affecting this agreement. * * * This agreement is not valid until signed by a duly authorized representative of this company at Elizabeth, N. J.”

Over the defendant’s objection the court admitted in evidence a written contract, dated July 19, 1923, between six individuals, whereby some of them agreed to liquidate specified debts of the plaintiff. That contract contained the following: “This agreement to become a part of contract dated July, * * * 1923, between Georgia-Florida Motor Company, of Jacksonville, Fla., and the Durant Motor Company of New Jersey.” The signatures of the parties to that agreement were witnessed by G. W. Alger. Over the defendant’s objections the court permitted William Fisher, a witness for the plaintiff, to state what G. W. Alger, who was a traveling agent of the defendant, said and did in the negotiations which resulted in the execution of the last-mentioned contract. The court denied a motion of the defendant, made after all the evidence had been introduced; that the jury be instructed to bring in a verdict in favor of the defendant.

The theory advanced in behalf of the plaintiff is that it was entitled to recover from the defendant the amount paid pursuant to the terms of the above-mentioned written contract dated July 19, 1923. In the absence of other competent evidence tending to prove that G. W. Alger was authorized to bind the defendant by consenting to that contract, the. above-mentioned testimony of Fisher as to what Alger said and did in the negotiations which resulted in the execution of that contract was not admissible over defendant’s objection, as evidence of what one says or does out of court is not admissible to prove his agency for another, or the scope of such agency. That testimony indicated that in the negotiations mentioned Alger acted in behalf of defendant, but did not tend to prove that he claimed to have authority to bind the defendant by consenting to the contract dated July 19, or any provision of it.

The testimony of Alger and other witnesses was without conflict to the effect that Alger was without authority to bind the defendant by consenting to that contract. No evidence adduced tended to prove that the defendant by any authorized agent or representative consented to the above-mentioned agreement dated July 19, 1923, becoming a part of the above-mentioned contract dated July 20, 1923, contrary to express provisions contain-, ed in the instrument evidencing that contract, or that any one authorized to bind the defendant in that regard requested the payment of the amounts sought to be recovered, or that in any way the defendant became obligated for amounts paid pursuant to the above-mentioned contract between strangers to it.

It follows that the court erred in refusing to give the above-mentioned requested charge to the jury. Because of the errors mentioned, the judgment is reversed, and the cause is remanded, with direction that a new trial be granted.

Reversed.  