delivered the opinion of the Gourt:
The testimony of Sullivan as to what Thomas Whiteside, the agent of the appellant, said, was improperly admitted. It was not said to, or in the presence of, the appellee, but to a third person having nothing to do with the controversy between these parties, and at a time when the agent was not engaged in the business to which the controversy relates. The statements of an agent are admissible only when they are a part of the res gestoe, but in this case they can not possibly be so regarded. Greenleaf’s Ev. sec. 113.
The testimony of Jackson was also improperly admitted. An agency can not be proven by the mere statements of the alleged agent. The judgment is reversed and the cause remanded.
Judgment reversed.