Upham & Clay v. Wheelock

Aldis, J. The declarations of Prouty, which were admitted in evidence, were an account he gave his principal, on his return from the defendant’s mill, of the reasons that prevented him from putting in the wheel. They were not statements which he made in the presence of 'the defendant, or while at the place and about the business of his agency. They were a narrative of what the defendant had said — that he had refused to pay any part of the expenses. If we believe that the defendant did refuse, it is not because there is evidence that he did refuse, but because there is evidence that the plaintiffs’ agent- said he refused, — said so, not at the time he was offering to put in the mill, or leaving the spot even for that reason ; — but afterwards in relating to the principal what had happened. Hence the credit we give to the agent’s narrative of what prevented him from doing what he was sent to do, is the foundation of our belief. Now the rule is that the declarations of the agent to be admissible must be made in transacting the business of his principal-, at the time, and as a part of the very .business then going on. [30] The brief examination of eases, as cited in the text books upon evidence, which we have been able to make, does not enable us to find an instance where declarations made to an employer by his agent of the conduct of the party with whom his agency was connected, upon his return to his principal, or in writing an account of it, have been admitted as evidence for the principal.. The agency of Prouty was to set and gear the wheel properly. When he left that business and returned to his principal, he was not engaged in the business of his agency. To hold that his declarations made upon his return to his employer, as to what happened in his interview with the defendant, shall be evidence upon the principle that they are made in the course of his agency, would be extending the agency beyond its proper scope. It would be a dangerous precedent — admitting the declarations of agents to bind, not their principals, but those -with whom they had been dealing for their principals, — when such declarations were not made at the time and as a part of the business they were transacting, but afterwards, in the presence of their principals, and when the temptation to misrepresent and the want of accurate recollection might dangerously affect the statement,— and when the party to be affected by the evidence had no knowledge of it or means of testing its truth or of denying its accuracy-. In short the evidence seems to be mere hearsay, and exposed to all the objections that exclude hearsay. 1 G-reenleaf on Ev. § 113 2 Phil. Ev. C. & H. notes p. 180. 1 ’ It is not questioned but that the evidence so admitted was to a • material point, and influenced the mind of the auditor. The judgment must be reversed and the case remanded to the county court.