The case was continued for advisement, and the opinion of the Court afterwards drawn up by
WestoN C. J.Several objections were taken at the trial in the Court below, none of which have been insisted upon in argu-*370merit, except that made to the competency of Nahum Houghton as a witness. He made the machines, which are the subject in controversy. The materials were furnished by the plaintiffs, and they made advances to the laborers employed, and the machines when made were to be their property. Upon the sale of the machines, after deducting their disbursements and a commission, they were to be accountable to Houghton for the surplus. The witness then was interested in verifying a sale to the defendants, inasmuch as the plaintiffs thereby became accountable to him for the proceeds, which he must have considered more valuable, than the unsold product of his labor. His business could not have been prosecuted beneficially, if at all, unless sales could be effected. He had a direct interest also in the price, upon the amount of which his claim upon the plaintiffs depended.
In certain cases, an agent may be admitted, although interested, from the necessity of the case. No such necessity existed here, for there was other evidence of a sale and delivery to the defendants. And it is contended, that for this reason, the exceptions ought not to be sustained, and the verdict set aside. The testimony of the witness however was material, and was calculated to have an important bearing upon the cause. There may have been other sufficient evidence of a sale and delivery; but whether the machines had been faithfully made, and of suitable materials, and whether their value had or had not been impaired by previous use, was controverted, in regard to all which, Houghton was the principal witness for the plaintiff, although there was other corroborating testimony. Upon the whole, we are of opinion, that his testimony was not legally admissible; and upon this ground, we sustain the exceptions, The verdict is therefore set aside, and a new trial granted,