69 N.W. 296 | N.D. | 1896
Only a single point is presented in this case. The suit was instituted to recover the value of two loads of wheat sold and delivered to defendant by plaintiff. The defense was payment. The plaintiff, as part of his testimony that the wheat had not been paid for, gave evidence as to a certain conversation with defendant’s agent, in which such agent stated that plaintiff’s men had not delivered such wheat at defendant’s elevator. It is here urged that this is error. The ground of this contention is that it was a declaration by the agent at a time subsequent to the transaction of sale, and therefore mere hearsay. It is apparent that if the agent, at a later period, had stated to plaintiff that the employes of the latter had delivered two loads of wheat at defendant’s elevator, the evidence would not have been competent. But the declaration of the agent, so far from being adverse to the interests of his principal, was precisely contrary in its effect. It is insisted, however, that there was no occasion for proving this conversation with the agent for the reason that the only question in controversy related to payment; the defendant conceding that the wheat had in fact been delivered at its elevator, -as claimed by plaintiff. And it is urged that the effect of the denial by the
The judgment of the District Court is affirmed.