Bernheim Bro's & Uri v. Hahn & Pidal

Cooper, C. J., 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 [462] contract as testified to by defendants, appellants were to take all that should remain in stock when defendants’ license expired. If this be true there was a contract of sale for the whole, executed by the delivery to Danheiser, who had no power thereafter to vary the rights of the parties by any refusal on his part to measure it up and deliver receipts to the seller. What was to be done by him was not in execution of the contract, but as a mere means of determining the extent of the credit to which the sellerwas entitled. Jordan v. Harris, 31 Miss., 257. 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.