28 Tex. 420 | Tex. | 1866
—The only points raised by the assignments of' error necessary to be considered arise on the admission in evidence of the statement of the defendant, (in' court below,) Creigler, in answer to an interrogatory propounded in another suit, which answer admitted the conversion to his own use of $360 belonging to his intestate’s estate during
So far as the defendant, Creigler himself is concerned, the admission of the testimony is unobjectionable. It is a rule of almost universal application, that the declarations of a party to the record as against such party are admissible in evidence. Statements in a deposition as declarations of the witness under his hand are admissible against him in a suit wherein he is a party, just as any other admissions would be. (1 Greenl. on Ev., § 552.)
But this is a suit on an administration bond against Creigler as principal, and the appellant, Lacoste, and another, as sureties, for a breach of the conditions of that bond, and the statement of Creigler admitted in evidence was made after the expiration of the administration, and not in the course of official duty; and, although admissible against himself, the question arises as to the admissibility of this statement under these circumstances to affect the appellant, his surety on the bond. There is some conflict of decision on this question, but it is believed to be well settled, by the weight of both English and American authorities, that such testimony under the circumstances of this case should not be received for that purpose.
In 1 Phillips on Evidence, 525, it is said to, be “ a general rule, founded on principles of justice, in regard to the relation of principal and surety, that the surety ought not to be affected by an admission made by his principal, although he may be affected by declarations or statements made by the principal when they are connected with the business in respect of which the surety becomes bound, and are made by the principal at the time of transacting .that business.”
In 1 Greenleaf on Evidence, § 187, treating of the admissions of a principal as evidence in an' action against the surety, it is said: “In the cases on this subject the main
“ The surety is considered as bound only for the actual conduct of the party, and not for what he might say he had done, and therefore is entitled to proof of his conduct by original evidence, when it can be had, excluding all declarations of the principal made subsequent to the act to which they relate, and out of the course of his official duty.”
In Smith v. Whittingham, 6 C. & P., 78, where one became surety on a bond conditioned for the faithful conduct of another, as clerk or collector, it was held, in an action on the bond against the surety, that confessions of embezzlement made by the principal after his dismissal were not admissible in evidence.
In Cutler v. Newling, (Manning’s Dig., 137,) on the execution of a writ of inquiry on an indemnity bond, an admission by the principal of the amount of damnification was considered by Holroyd, J., inadmissible.
In Douglass v. Howland, 24 Wend., 58, and McKellar v. Bowell, 4 Hawks, 40, the rule recognized in Phillips and Greenleaf on Evidence, quoted above, is referred to and approved. Li the former case, it is said to be perfectly well settled, both at Westminster hall and by a majority of the American courts, that the admissions of the principal, when offered to affect the surety and not a part of the res gesta, should be excluded.
In McKellar v. Bowell, 4 Hawks, 40, which was an action against the securities on a guardian’s bond, in which the record of a judgment recovered against the guardian’in a suit brought against him alone was offered in evidence, it was held, in an elaborate opinion, reviewing both civil and common-law authorities, to be inadmissible. Among other arguments against its admission, it is said:
*424 “If A bind himself to pay for goods sold and delivered ' to B, the admission of B as to the amount of the goods sold and delivered to him is not admissible in the suit against A. Hor, upon the samé principle, could a judgment against B, founded on this admission of the debt, be evidence' against A.”
It is universally agreed, that the admissions of one partner, during the existence of the partnership, in respect to the business of the firm, are admissible as evidence against his co-partners. Hot so as to admissions made after dissolution, although as to business done or facts transpiring before, they are believed to be inadmissible to affect the interests of a co-partner. (Baker v. Stackpole, 9 Cow., 420; Chardon v. Oliphant, Calder & Co., 2 S. C. Constl., 685; White v. Union Insurance Company, 1 Nott & McCord, 556; Walker v. Duberry, 1 Marsh., 189; Story on Part., §§ 323, 324; Speake v. White, 14 Tex., 369.)
It is a well-recognized principle, that when the acts of an agent will bind his principal, then his representations, declarations, and admissions, respecting the subject-matter, will also bind him, if made at. the same time, and constituting a part of the res gestee; but that the statements of an agent, to the prejudice of his principal, after his agency has ceased, are mere hearsay, and not admissible. (1 Greenl. on Ev., § 113; Bingham & McCall v. Carr, 21 Tex., 142.)
And this is the underlying principle in all these cases, because, whenever the declarations of one party are admitted as testimony against another, it is, upon the principle implied by law, from the relation of the parties to each other, or to the subject-matter, or both, that the declarant is, in regard to the subject-matter of the admission, the agent of the party sought to be affected. And when this relation has ceased, as in partnership, by a dissolution, or, as in the case under consideration, by expiration of the pro tem. administration, for the proper conduct of which
It follows, from what has been said, that the charge of the court to the jury, which was to the effect that Creigler’s admissions were evidence against Lacoste and Alsbury, his sureties, was erroneous; and the verdict of the jury being evidently based upon this evidence, and the charge of the court with reference to it, the judgment must be reversed. The court should, by instruction to the jury, have limited the effect of this testimony to Creigler himself; it is clearly legitimate against him, and clearly not so against his sureties.
The record does not contain the inventory filed by Creigler when he was appointed administrator in chief, and we do not know whether, in that inventory, he returned and properly accounted for all the property and money that came into his hands as administrator pro tem. Consequently, we will not discuss what effect, if any, it would have on the liability of the sureties on the first bond, if his inventory had shown this, as the point is not raised.
Judgment reversed, and cause remanded for further proceedings.
Reversed and remanded.