It is said, by the defendant, that the testimony of George Sanders was admissible as a part of the res gestae. The declarations of third persons are not competent evidence as a part of the res gestae, unless they in some way elucidate or tend to give character to some act that they accompany which is material. Woods v. Banks, 14 N.H. 101; Morrill v. Foster,32 N.H. 358, 360. This was not a statement of a third person that accompanied a material act. Neither was Nelson's statement, that he would not work for the defendant, evidence to prove that he was not at work for him at the time he received the package. Fowler v. Madison, 55 N.H. 171; Bell v. Woodward, 47 N.H. 539.

The evidence of the defendant, as to what Nelson said just as he was starting with Edward, was a part of the res gestae. It tended to explain why Nelson went. Tenney v. Evans, 14 N.H. 348; Sessions v. Little,9 N.H. 271.

The charge of the court was correct. It was a question for the jury whether Nelson was the defendant's agent, or was so held out by him; and the jury were properly instructed to consider the entire question upon all the evidence in the case relating to it, and not a part of it upon selected portions of the evidence. The request limited the question and the evidence to be considered, and was properly rejected.

Verdict set aside.

DOE, C. J., did not sit. *Page 134