Low v. PerkinsLow v. Perkins
- Reporters:
- Before:
- Phelps
The opinion of the Court was delivered by
Phelps, J.This сase, although somewhat complex, presents in reality but one question for our consideration. It appears that a contract had been entered into by the plaintiff, with certain individuals, as agents or trustees of аn association for building a church, for erecting t‘he building, uрon certain specified terms; and in the course of the trial, it became necessary for the plaintiff to prove, that by agreement of parties the spеcial contract was abandoned, and that he wаs to be paid for the erection of the building upon a quantum meruit.
*535To prove this, he offered testimony to prove thаt one of the agents had said to Morrison, who was associated with the plaintiff in the erection of the building, and tо induce him to proceed with the work, that he should loose nothing if he proceeded with it-and, also, that anоther of the trustees had admitted, that such new contraсt was made. The case states that there were fоur or five of these trustees in all. The testimony was rejeсted by the court below, upon the ground that the concurrence of all the trustees was necessary, to alter the contract, to which the plaintiff exceрted.
There can be no doubt that the court did right, in rejeсting the testimony upon the ground stated. Where several individuаls are associated in a public trust, it is competent for a majority to act, and to bind their principals ; but, in thе case of a private trust or agency, the rule is different, and the concurrence of all is necessаry. There is another reason why a part of this testimony wаs improper, and that is, that the testimony was hearsay оnly. It is a general rule, that the declarations of a person, who is himself a competent witness, shall not be received. I know of no exception to this rule, except when the declarations themselves are tо be regarded as facts, and constitute a part оf the res gesta. The declarations of a person in possеssion of real estate may be received to explain and give character to his possession, but there the declarations are tire fact to be рroved, and will give character to the possession, whether true or false. So the declaration of аn agent, while acting for his principal, and which are a part of the res gesta, may be proved. But in this case the admissiоn of the trustee is not of that character, nor was he the agent of these parties. Had the suit been agаinst the association, and the trustee had been onе of them, possibly his admission would be pertinent, as the admissiоn of the party. But, as between these parties, the trustees were competent witnesses, and of course their out-door declarations are hearsay merely, and, as such, clearly not admissible.
Judgment affirmed.