48 Vt. 382 | Vt. | 1876
The opinion of the court was delivered by
In determining the question as to whether the evidence of Rolfe was properly admitted, it becomes important to ascertain the construction which should be put upon the letter which was written by the defendant to the plaintiff in reply to the letter written by the plaintiff to him on the 14th of September.
Barnard having authority to sell the horse, and there being no evidence that he was directed not to warrant, the court were justified in holding that the power to sell gave him -the right to warrant. And if the principal would avoid the warranty made by Barnard, it was incumbent on him to show that in authorizing Barnard to sell the horse, he directed him not to warrant him. Barnard having authority to make the warranty, his admissions and declarations which had a tendency to prove that he made the warranty, were admissible, and the testimony of Rolfe was admissible for that purpose. The declarations testified to by him were made by Barnard while he and the plaintiff were talking about the trade, and it is not necessary to the admissibility of such evidence, that the declarations should have been made at the time when the trade was consummated. If made while the negotiaton is proceeding, and with the intention and expectation upon the part of the party making them that the party to whom they are made will rely upon them, and he does rely upon them, they are admissible.
The exception taken to the reproduction of the testimony of the deceased witness Scott, cannot be sustained. The objection was a general one, and was to the competency of the evidence. The
Judgment affirmed.