Bernheim Bro's & Uri v. Hahn & Pidal
Bernheim Bro's & Uri v. Hahn & Pidal
Opinion of the Court
delivered the opinion of the Court.
What was said by Danheiser, the agent of the appellants, at the time of the levy of the attachment, in reference to the ownership of the whiskey levied on, should not have been admitted in evidence as an admission by his principals.
The whiskey had before that time passed from the possession of the defendants to that of Danheiser, and according to the
The declaration of the agent that the property levied on was not the property of his principals, but was the property of the defendants in execution, was not one made in the scope of his agency nor in reference to any thing being done by Mm as agent. It is only where the agent could bind the principal by his act that a declaration or admission made by him is admissible in evidence either for or against the principal. The declaration or admission must be of a character to illustrate or characterize some act being done and connected with it as a part of the res gestee to make it admissible in evidence. Wharton on Evidence, Sect. 1173 ; Taylor on Ev., 513 ;
If Danheiser had any duty to perform under the facts shown in evidence it was to keep possession for his principal of the property which had been delivered to him. The effect of the declaration admitted was, that as to the whiskey seized by the officer he was not the agent for appellants. If this be true he had no authority to bind appellants because he was not as to this particular property their agent. Appellees, contention for the ■admissibility of this evidence reduces itself to this. The property seized was never the property of appellants, because Danheiser never held it for them, and his declaration that it was not their property is competent evidence against appellants, because he did hold it as their agent. It is impossible that this can be a sound proposition.
The judgment must he reversed and cause remanded.
Reference
- Cited By
- 1 case
- Status
- Published
- Syllabus
- A gency. Declaration of agent, whether evidence against principal. Case in judgment. H., engaged in selling whiskey, agreed with B., to whom he was indebted, that upon the expiration of his license he would deliver to D., for B., all of his remaining stock of whiskey; and B. agreed that D. should receive, measure and receipt for it, and he (B.) would credit Ii. with the value of the same at the cost price thereof. On the same day on which II. delivered the remnant of whiskey to D., in pursuance of his agreement with B., the whiskey thus delivered was attached in the hands of D. by P., a creditor of H. B. claimed the whiskey so attached. Upon the trial of the claimant’s issue, the plaintiff in attachment'was allowed to prove, over the objection of the claimant, that D. stated when the whiskey was seized that it belonged to H. Held, that D.’s agency was not to be exercised in execution of the contract of sale of the whiskey, but merely as a means to determine the extent of the credit to which H. should be entitled on his indebtedness to B.; and his declaration as to the ownership of the whiskey was not within the scope of his agency, and evidence thereof was incompetent.