
    Edmonstone v. Hartshorn et al.
    
    An agent, employed to obtain orders for the construction of machinery by his principal, had been engaged in a negotiation for such an order, winch had been broken off, and he had no reason to suppose it would be renewed, He received the order after terminating his agency, in a letter written before that event: Held, that it was his duty to communicate the letter to his former principal, and his failure to do so was not excused by his supposing himself in good faith to have ascertained that the principal was unable to comply with the order.
    A party is not required, on the call of his opponent, to produce documents, the execution of which he has proved upon the examination of a witness de bene esse. They remain under his control until read in evidence, and he may read a portion of them and refrain from using the others, at his election.
    The opposite party must procure a discovery of them before the trial, or be prepared with parol evidence of the contents, on a refusal to produce them.
    Appeal from the Superior Court of the city of New York. The action was for the recovery of the plaintiff’s salary. In August, 1852, he was employed by the defendants to reside in the Island of Cuba, as their agent for procuring orders for the manufacture of sugar mills, engines, boilers, centrifugal machines, &c., and to make sales of such machinery. He was to be paid $2,400 per annum, in equal monthly payments. Upon the trial it was proved that, after remaining in Cuba some eight months, the plaintiff returned to Hew York in June, 1853, and presented his bill to the defendants for the residue of his salary, a portion having been paid him in Cuba. It was proved, in defence, that when the plaintiff left Cuba he was engaged in a negotiation with a Mr. Bequer, for the construction by the defendants of a steam engine, &c., to be set up on Bequer’s plantation. Several letters had passed between Bequer and the plaintiff in reference to the character and price of the engine, and the time of its delivery. The terms proposed by the plaintiff were accepted by Bequer, by a letter written before the plaintiff left Cuba, but not received by him until after his arrival at Hew York and the presentation by him to the defendants of his claim for his unpaid salary. A few days afterwards the plaintiff gave the order for the construction of Bequer’s engine to a rival establishment—the West Point Foundry—by which it was constructed. The defendants proved that they coaid have complied with Bequer’s order within the time limited by it for delivering the engine, and that their profit would have exceeded the entire amount of the plaintiff’s salary.
    The referee found that, when the plaintiff’s agency ceased on his return to Hew York, the negotiation for the Bequer machine had been broken off, and he had no reason to suppose it would be renewed, and that when the order was received and given by him to the West Point Foundry, he acted in good faith, without gain or profit to himself, and honestly believing that the defendants could not do the work within the time required.
    This last finding was based upon evidence admitted by the referee, under an exception by the defendants, of a conversation between the plaintiff and the foreman in the defendants’ works, relating to the time which he required for the construction of such a machine, and the defendants’ state of preparation in respect to materials, patterns, &c.
    The plaintiff examined one Baxter as a witness de bene esse, under a stipulation for that purpose, which waived the filing of the witness’ deposition, and permitted it to remain in the possession of the plaintiff’s attorneys, until it should be read at the trial. Baxter proved several letters and other documents, which were marked and numbered as Exhibit A, 1, Exhibit A, 2, &c. Upon the trial, the plaintiff’s counsel read the deposition and some of the exhibits therein described as numbered and marked as aforesaid. The defendants’ counsel called for the production of the other exhibits referred to in the deposition. The plaintiff refused to produce them; the referee decided that he was not bound to produce them, and the defendants took an exception.
    The judgment entered on the referee’s report for the plaintiff having been affirmed at general term, the defendants appealed to this court.
    
      Amasa J. Parker, for the appellants.
    
      Marshall L. Bidwell, for the respondent.
   Johnson, Ch. J.

The first question which this case presents arises upon the decision that the plaintiff was not bound, at the call of the defendants, to produce certain letters which had been proved by a witness on the part of the plaintiff, on an examination de bene esse. The letters were marked with the word “ Exhibit,” and with some other distinctive sign, and are thus referred to in the testimony of the witness. By statute (2 R. S., 393, § 9), such a deposition is to have the same effect, and no other, as the oral testimony of the witness would have if given on the trial. It is of constant occurrence upon trials that a witness proves the execution of a paper put into his hands for that purpose, and that the paper is not given in evidence, unless the party who produced it thinks fit to use it. His right to refrain from using it under such circumstances is well settled. The paper does not become evidence in the cause by the mere proof of its execution. Until it has been read in evidence, it remains under the control of the party to whom it belongs. This is, in fact, what was done in * the present case. The papers were produced and their genuineness proved by the witness, and the marking was made for the purpose of readily identifying the particular paper. That did not make them n part of the evidence in the case; until they were read in evidence, the other party acquired no right over them. If he desired and was entitled to the benefit of them as evidence, he should have procured a discovery of them, or been prepared to give parol evidence of their contents on their not being produced.

Upon the merits of the case, I am, however, of opinion that it was a failure in duty on the part of the plaintiff, not to communicate to the defendants the proposition of Bequer, made to him as agent of the defendants. It is true that before the receipt by him, in Hew York, of Bequer’s letters of June 18 and 26th, his actual continuance in the defendants’ employment had ceased; but the negotiation was commenced while he was in their employment, and when he left Cuba it remained the subject of an open correspondence. If he desired to take no further care of their business on his arrival at Hew York, it was his plain duty to have communicated to them the fact that such a correspondence existed, and when in Hew York he received Bequer’s letter of the 18th of June, with which, except as agent of the defendants, he had no concern, he should have transmitted it or communicated its contents to them. To that extent, at least, he had a duty unperformed which he remained bound to perform though his actual agency was at an end. The letter, though nominally addressed to him, was in fact addressed to them, and they should have been afforded the opportunity of exercising their own judgment on the proposition it contained. It is no excuse for him that he inferred from conversation with their foreman, that they could not perform the work in time. He was not Bequer’s agent, and was not called upon to exercise any judgment or discretion upon the subject. It was, therefore, an error on the part of the referee to admit the evidence on the subject of that conversation, for which a new trial must be granted.

All the judges concurred in respect to the point first discussed by the Chief Judge; in respect to that secondly discussed by him, Comstock, Selden and Allen, Js., dissented, and were for affirming the judgment.

Judgment reversed, and new trial ordered.  