Clark v. Baker

2 Whart. 340 | Pa. | 1837

The opinion of the Court was delivered by

Sergeant, J.

As to the first error. A person acting for another in the course of the business intrusted to him, and within the scope of his authority, represents his prin cipal; and statements made by him under these circumstances, are evidence against the principal. Statements not in the exercise of his authority, or before it originated, or after it has ceased, are no more than those of a stranger, and are nobadmissible to affect the principal. C. R. Middleton, after the stores were erected, employed the witness as one of the measurers; and in the course of a conversation between them, in answer to a question by the witness, .he said there had been a contract between Clark and himself, but it had been cancelled and thrown aside. This appears to have been a statement made, not in the course of his alleged agency for the erection of the stores, but after it had ceased; and it had no connection with the employment of the witness as measurer, but related to another matter occurring long prior. It cannot be said that Clark employed him to make this. statement as to the original contract, or that any declaration on the subject to the witness, was necessary, or within the scope of Middleton’s authority. It seems rather to have been a question of curiosity on the part of the measurer than of business; for his authority to measure, and his right to compensation, were independent of it.

Besides, it is a rule that the agency itself cannot be proved by the *344declarations of the agent without oath, and in the absence of the party to be affected by them. Plumstead v. Rudebaugh, (1 Yeates, 502.) The question whether C. R.' Middleton was the agent or not of Clark, for having the stores erected, depended on another question, whether the original contract subsisted or was cancelled, and a general authority was given. In the former case, the remedies of the workmen and material men would be against Middleton, or the building,- in the latter there was also a remedy against Clark. To allow C. R. Middleton’s statements, to prove that the contract was cancelled and thrown aside, was, in effect, to permit his agency to be proved by his declaration.

2 and 3. These errors are not sustained.

Judgment reversed, and a venire de novo awarded.