Memphis & Vicksburg Railroad v. Cocke

Cooper, C. J., delivered the opinion of the court. One of the principal points in controversy in this suit was whether Moore, the resident engineer, had authority to bind the appellant by the contract entered into with appellee’s intestate. On this question there was a conflict of testimony, and it may be that the jury would have solved it in favor of defendant but for the admission of the deposition of the witnesses Smith, by which over the objections of the defendant the plaintiff was permitted to prove the declaration of Moore that he was agent and authorized to contract as such. It is well settled that the fact of agency cannot be thus proved. Kinnare v. Gregory, 55 Miss. 615; Snook v. Lord, 56 N. Y. 605; Whitinq v. Lake, 91 Pa. 349; Reynolds v. Insurance Co., 36 Mich. 131. It was also error to permit so much of the deposition of these witnesses to be read in evidence as related to the declarations of Moore that the intestate “ had been badly treated ” and discharged without cause, and that the work done by him was the best performed on the road. If these were relevant facts they should haVe been established by competent evidence and not by the mere statements of a third person. If it be conceded that Moore was the agent of the defendant and authorized to make the contract for [717] breach of which this suit is brought, it would be incompetent to establish the breach by his declarations. Moore v. Railroad Co., 59 Miss. 244; Dickenson v. Williams, 50 Miss. 501; McGowan v. Railroad Co., 62 Miss. 698; Foster v. Railroad Co., 63 Miss. 67. The judgment is reversed and cause remanded.