38 N.J.L. 13 | N.J. | 1875
The opinion of the court was delivered by
This suit was for damages caused by the carelessness of the defendant in towing a boat of the plaintiff’s. The alleged want of care consisted in running upon a snag, whereby the plaintiff’s boat was injured and sunk; and, at the trial, the central fact in dispute was,' whether the existence of the snag in question was known to the agent of the defendant. To prove this fact of knowledge, several witnesses testified that the agent in charge of the boats of the defendant, and who is here to be regarded as the general agent in charge of this business of towing, admitted to them that he knew of this snag before the happening of the accident. These conversations, embracing these admissions, were entirely casual, and were not connected with the doing of any act within the scope of the agent’s authority. It is now insisted that these conversations were not admissible in evidence.
At the trial, the alternative was between letting in this evidence, or non-suiting the plaintiff; and as some of the books intimate that a distinction exists with respect to the rules of evidence between the statements made by a general agent and those made by a special agent, whereby the former are placed on a broader principle than the latter, it was thought best, though with much misgiving, not to rule out the offered testimony. Favorable to the view thus taken at. Nisi Prius, is the statement in note 239, appended to Phillips’ Evidence, to the effect that some of the cases put the power of the general agent to make admissions on the same footing as the power of the principal himself. But upon carefully examining the authorities referred to, they do not support this doctrine, except in a very loose sense. I do not find any of them rule the point. ~ And even if any of them maintained such a rule, they ought not to be followed, for such a rule would, as it
Manifestly, then, the rule thus defined does not embrace statements, declarations, or admissions of the agent, which are not made in the execution of the agency. That they relate
Applying this test, the evidence in question in the present instance should have been overruled. It was a statement made by a general agent with respect to the business of his principal •; but it was a mere voluntary statement, made to a person having no interest in the subject to which it referred, and was not in the performance of any part of the duty.
A new trial should be granted.