Davis v. Whitesides

| Ky. Ct. App. | Apr 23, 1833

Chief Justice Robertson

delivered the Opinion of the Court.

The circuit court erred in instructing the jury, that, if Miller was either the partner, or agent, of the plaintiff, his ( Miller’s) statements, as proved by another witness, were competent as evidence against the plaintiff. An acknowledgment of an agent is not admissible as proof against bis constituent, unless it formed a part of the res gestee-.

If Miller had, as agent, collected the account alleged to be due from the defendant to the plaintiff, any thing which he said at the time of collection, would have been evidence against the plaintiff; but no acknowledgment after the payment would liare been legal proof. As the acknowledgment which was proved in this case, was made after the payment, or settlement, of the account, (if it was ever paid or settled,) the instruction, as given and as applied to the facts, cannot be sustained.

Wherefore, we feel constrained to reverse the judgment, and remand the cause for a new trial.