The amended complaint sufficiently informed the defendant of the place where the collision complained of occurred. Bugg v. Green (Ala. Sup.) 110 So. 718, 1 where all the cases are reviewed. Moreover, the evidence shows that the defendant could not have been prejudiced even had the pleading been technically deficient in this respect.

The defendant’s- testimony shows clearly and conclusively that, although the truck that injured plaintiff was in the custody of Hambright, and was driven and used by him, and that defendant exercised no control over the manner, or the occasions, or the details of its operation, yet defendant furnished the truck to Hambright for use in the prosecution of a joint, enterprise for tneir common advantage, the profits of which were to be shared by them in preagreed proportions.

The case of Stroher v. Elting, 97 N. Y. 102, 49 Am. Rep. 515, perfectly illustrates the principle that governs. Affirming the liability of the defendant for injury by his wagon, done to the plaintiff while being driven by one McCann, the court, per Danforth, J., said:

' “The team was owned by the defendant, its driver was one McCann, the business transacted with it was the carriage of passengers, and the defendant testifying, in his own behalf concerning the relation between McCain and himself said, in substance, that the arrangement was that he would furnish the team and equipments, and take care of them, and McCann gather the passengers and collect their fares, which were to be divided in the proportion of three-quarters to himself and one-quarter to McCann. In face ■of these facts the appellant contends that the relation was not that of master and servant, which may be conceded, and also argues that there was no partnership between them, and assuming that to be so, insists that there can be no liability on the part of one for the other’s •act, and we must hold that way or the appeal fails. It is clear, however, that there was a contract relation between them. They undertook to engage together in a money-making occupation, to which one contributed as capital the horses, harness and wagon, and food and care for the team, and the other his personal services. The reward of each- was to be derived from the avails of the business as such, and not by way of compensation either for services or use of property. As to third persons, therefore, within rules too well settled to permit discussion, each became the agent of the other in the prosecution of the common enterprise, and'liable for his omissions and faults in regard thereto. Champion v. Bostwick, 18 Wend. 175 [31 Am. Dec. 376]; Legget v. Hyde, 58 N. Y. 272; same case, 17 Am. Rep. 244; Roberts v. Johnson, 58 N. Y. 613.”

The case of Bonfils v. Hayes, 70 Colo. 336, 201 P. 677, is in accord. See, also, 33 Corpus Juris, 873, § 102. Our own case of Aldrich v. Tyler Grocery Co., 206 Ala. 138, 89 So. 289, is distinguished from the instant case in that there the negligent operator of the car himself owned and maintained it, and there was no joint enterprise prosecuted by him for himself and the defendant. So of the other cases cited by appellant.

Our view of the matter is that on the undisputed evidence defendant was liable for the negligent conduct of Hambright, or his employees (Tenn., etc., Co. v. Hayes, 97 Ala. 201, 12 So. 98), in the operation of this truck, and that the trial court might have properly instructed the jury to that effect, submitting to them only the questions of negligence, contributory negligence, and damages.

From this it results that the several charges predicated upon the theory that Hambright was, or may have been found to be, an independent contractor and not an agent, were properly refused.

The other charges refused to defendant were either covered by given charges, or were bad in form, in that they required the jury to be satisfied of the truth of the averments of the complaint instead of reasonably satisfied,

The trial court erred in permitting witnesses for plaintiff to testify that Ham-bright said just after the collision that he and his sop were working for defendant. This was objectionable because it was no part of the res gestee of the collision, but was independent hearsay merely. An agent’s declarations, of any sort, are not competent evidence against his principal unless made in the prosecution of the principal’s business, within the scope of the agent’s authority, and with reference to and explanatory of the act or transaction in question. U. S. C. I. P. & F. Co. v. Caldwell, 208 Ala. 260, 94 So. 540; United Naval Stores Co. v. Pugh, 156 Ala. 369, 374, 47 So. 48. Several of our cases have possibly overlooked this qualification' in applying the rule, but the fact of agency must be shown, as other facts are shown, by competent legal evidence, and not by hearsay. '

But our conclusion as to the legal effect of defendant’s testimony renders harmless the admission of the 'hearsay statements, since they could not have affected the result.

We find no error prejudicial to appellant, and the judgment will be affirmed.

Affirmed.