
    McNeeley, Respondent, v. Hunton, Appellant.
    1. Held, in a suit brought by A. against B. for wrongfully seizing and selling under an execution against C. certain horses alleged to have belonged to plaintiff as having been purchased for her by G. as her agent, that declarations made by C. in making the purchases to the effect that he was purchasing the horses for himself were admissible in evidence, together with evidence of the insolvency of C. at the time of said purchases, to show that the alleged agency was but a cloak to cover the fraud of C.
    
      Appeal from Benton Circuit Court.
    
    Wright, for respondent.
   Scott, Judge,-

delivered tbe opinion of tbe court.

Tbe witness Whitlow was properly directed not to answer tbe question put to him respecting what be bad beard Burnes say, as it does not appear that any ground bad been laid for such an inquiry in tbe previous examination of Burnes, who should first Have been asked the question whether he did not make the declaration that he was purchasing horses for the government agent. We do not see on what ground the court refused to let the witness Dozier answer the question whether one of the six horses was not purchased by Burnes on a credit, who gave his note for it, with Dozier as security. Surely it could not have been on the ground that it did not appear that the horse, about which the inquiry was made, was onp of the three claimed by the plaintiff. As the plaintiff maintained on the one hand that Burnes was her agent, and as on the other this was denied, and it was insisted that she was a mere screen to hide the fraud of Burnes, she could not assume that the property was hers, and that therefore the declarations of others should not affect her rights. This would be taking the matter in controversy for granted. The purchase of the whole number of horses, so far as the question of fraud was concerned, must be regarded as a single transaction, and whether Burnes was acting for the plaintiff in good faith, or was using her name in making his purchases as a cloak to his fraud, should have been submitted to the jury with all attending circumstances and declarations calculated to throw any light upon the questions. The declarations of Burnes, while acting as agent, were, as part of the res gestx, evidence against the plaintiff. In ferretting out fraud, great captiousness against evidence, on the ground of its irrelevancy merely, is a suspicious circumstance, and induces the thought that such a spirit is manifested from a fear that the evidence may elicit the truth. If a suitor’s conduct has been fair, he will not dread an investigation of it. The pretence of saving the time of the court is but a weak apology for such a course, as it is well known that when this captiousness is displayed more time is consumed in arguing questions of evidence than would be spent in hearing the matter alleged to be irrelevancy. If the evidence is merely irrelevant, it can not possibly do any harm to the party against whom it is offered. In relation to this subject, we refer to what was said in the case of Lane v. Kingsbury, 11 Mo. 410.

We see no ground for refusing evidence as to tbe insolvency of Burnes at tbe time be was employed in purchasing tbe borses. Sucb evidence furnished proof of a motive for fraudulent conduct on bis part, and, with other circumstances, would have its weight. Tbe defendant could surely have shown collusion between tbe plaintiff and Burnes, and that tbe money used by him was bis own. Those points were not raised, but they are now noticed, because, for other reasons, tbe judgment will be reversed and tbe cause remanded for a new trial.

For reasons before given, the evidence of tbe witness McDonald should have been admitted. It relates to what was said and done by Burnes during bis agency for the purchase of the horses. It was primary evidence, and there was no necessity for laying any foundation for its admission.

From what has been said, it will be seen that the testimony of other witnesses was properly excluded, because no previous foundation had been laid for contradicting the witness Burnes. After Burnes had ceased to act for the plaintiff, his declarations and conduct could not affect her rights.

Judge Ryland concurring,

reversed and remanded.  