Anthony v. Estabrook

1 Colo. 75 | Colo. | 1867

Hallett, C. J.

It is clear that the declarations of an agent, if introduced for the purpose of binding his principal, must have been made at the time of the transaction to which they relate, and not afterward. Fairlee v. Hastings, 10 Vesey, 123; Corbin v. Adams, 6 Cush. 93; Luby v. Hudson River R. R. Co., 17 N. Y. 131.

It appears that Shortridge was employed to go a journey for appellant, for which purpose a team was hired by the latter from appellee. After an absence of two days, Short-ridge returned with but one of the horses which he had taken away, saying that the missing horse had died on the road, and giving some incidents of the trip. Evidence of these declarations of Shortridge was admitted in the court below for the purpose of charging appellant, and, we think, improperly admitted. The horse died during the journey of Shortridge, and these declarations were not made until after his return, and therefore they were not contemporaneous with the loss of the horse to which they referred. With the death of the horse the liability of the appellant, if any exists, became fixed, and he is not to be charged upon any statements made by Shortridge after that event took place. The rule governing this question, and the principles upon which it rests, are so fully declared in the cases above cited that any discussion of it here would be out of place.

It is objected that the evidence does not support the declaration, inasmuch as it shows a hiring of two horses and a buggy, whereas the declaration speaks of the hiring of one horse only. It is to be observed that the third count of the declaration contains no mention of any hiring whatever, but in that count it is simply alleged that the defendant had the care of a certain other horse, etc. For aught that appears, the evidence was given under the third count, to which we perceive no objection. For the reason first stated, however, the judgment must be reversed, with costs, and the cause will be remanded.

Reversed.