Van Doren v. Bailey

Vanderburoh, J. The defendant resists plaintiff’s claim to the team of horses in controversy, on the ground that be bought them of one Prescott, who had previously purchased them of plaintiff through [306] her husband, acting as her agent. Prescott was, at the time, occupying plaintiff’s farm, which, together with stock, teams, and implements, he had leased of her. At the close of the testimony a verdict was ordered for the plaintiff. Defendant claims, on this appeal, that there was evidence in his behalf sufficient to make a case for the jury. Conceding that there was evidence tending to establish the agency of her husband, and his authority to make a sale of the team to Prescott, we think the evidence relied on was insufficient to establish the sale. There is no direct evidence of a contract of sale with Prescott. He was in possession, as tenant, as he was of other stock. All the evidence adduced on the subject was the admissions of the agent, made by him in casual conversation, as follows: “On the occasion of a difference between Prescott and plaintiff’s husband in relation to property on her farm, the latter accused him of stealing a team from him, to which Prescott said, ‘I guess not. I bought them of you;’ to which Van Doren replied, ‘ Well, if you have, you never paid for them.’ On another occasion, a neighbor called Van Doren’s attention to a team hauling a tank of water from the lake, saying, ‘ There is one of your teams, Mr. Van Doren;’ when he looked up and said, ‘ I wonder what they have got my team hauling water for. I sold Prescott a team good enough to haul water with.’ ” Another witness testifies to the same effect. It is very doubtful if the team referred to was sufficiently identified as the team in question. The witnesses undertake to say he referred to this team, but there is nothing in the conversation or evidence which tends to show that. But the evidence at best was hearsay, and the admissions did not bind the plaintiff. They were not made in the course or within the scope of his agency while transacting business for his principal, nor in relation to a transaction or matter then depending, in which he was acting or called upon to act or speak for his principal. And the rule applies as well to a general as to a special agency. The admissions were not evidence against her. Fairlie v. Hasting, 10 Ves. 123; White v. Miller, 71 N. Y. 118, 136; Stiles v. Western R. Corp., 8 Met. (Mass.) 44; Mechem, Ag. §§ 714, 715. Order affirmed. (Opinion, published 51 N. W. Rep. 375.)