Ballard v. Beveridge

Barrett, J.:

I am unable to concur with Mr. Justice Patterson in this case.. Reference to the facts upon which the former judgment was reversed ■only tends to- confuse the question presented- by the present appeal. Our duty is simply, while following the rule of law laid down upon the former appeal-, to decide whether the facts in this record bring the case within its application. The action is for the conversion of 400 shares of stock. The defendant denies the conversion and alleges affirmatively an accord and satisfaction, which embraced the; shares alleged to have 'been converted. Upon the trial, the plaintiff gave evidence, amply sufficient to go to the jury, tending to-establish the conversion. Yet he was nonsuited, the learned court, being of the opinion'that, in cross-examining the plaintiffs’ witnesses,, the defendant had succeeded in getting the accord and satisfaction into the plaintiff’s case, and in establishing it so conclusively that there was not even a question for the jury on that head. The question now is, was the nonsuit justified by the proof as it then stood.

There was no proof of the accord and satisfaction as an independent fact. The alleged settlement rests wholly upon the declarations of an agent, employed to negotiate it, made to his principal. Plainly the letter in which this agent (Price) informs his principal! (Duke) that one Cromwell has settled the account with Beveridge was inadmissible. It was a mere narrative of what had occurred'.. We do not know what had occurred or what had been settled. We only know what the agent says had occurred. His declarations,, made concurrently with h-is acts or in the course of his negotiations — relating to and connected with the business then pending — were a part of the res gestes. But there were none such ; and his declarations cannot create the res gestes. Whatever bargain was here made was made before Price wrote the letter in question to Duke. The. declaration is, therefore, the narrative of a concluded bargain.

It was held in England,-as long ago as the year 1812, that “ letters-of an agent to his principal, in which he is rendering him an Recount of the transactions performed for him, are not admissible in evidence against the principal.” (Langhorn v. Allnutt, 4 Taunt. 511.) Lord Mansfield there said -that such “ letters are not a part of the res gestes, not letters written in the course of the transaction, and forming a part of it; hut a mere narrative.” Chambre, J., said *479that the letters “ were properly rejected; they are not a part of the res gestee, but merely an account of them, and upon no ground admissible.” Gibbs, J., added: “ When it is proved that A. is agent of B., whatever A. does, or says, or writes in the making of a-contract as agent of B., is admissible in evidence, because it is part of the contract which he makes for B., and, therefore, binds B.; but. it is not admissible as his account of what passes. Row, what are" these letters % They are not part of the contract itself, or of the res gestee, but they are the account which the agent renders to his-principal of what he is doing; they are not, therefore, admissible.”

Lord Mansfield, in his opinion, referred to the case of Fairlie v. Hastings (10 Ves. 123), where the master of the rolls, Sir William. Gbant, examined the cases on this point. In the latter case the master of the rolls put the doctrine in these clear words: “ The admission of an agent cannot be assimilated to the admission of the principal. A party is bound by his own admission, and is not permitted to contradict it. But it is impossible to say a man is- precluded from questioning or contradicting anything any person has-asserted as to him, as to his conduct or his agreement, merely because that person has been an agent of his. If any fact material to the-interest of either party rests in the knowledge of an agent, it is-to-he proved hy his testimony, not hy his mere assertion. Lord Kenton carried this so far as to refuse to permit a. letter by an agent to-be read to prove an. agreement by the principal. (Maesters v. Abraham, 1 Esp. N. P. Cas. 375.) If the agreement was contained in the letter, I should have thought it sufficient to have proved that-letter was written by the agent. But if the letter was offered as-proof of the contents of a pre-existing agreement then it was properly rejected.”

While the precise question does not seem to have been decided in this country, the English rule is clearly within the general principles which have been laid down here with regard to the declarations of agents. The declaration here was not made in the" course of any proved negotiation. It did not characterize any proved act. It was not the act itself nor any part thereof. The agreement was not contained in the letter. The letter was plainly information as to a preexisting concluded agreement, and was mere hearsay. It was in fact hearsay upon hearsay, as it merely purported to declare to the principal what Cromwell had declared to the agent.

*480It is said that Duke received and accepted the stock, check and notes referred to in the letter, but of that there is no evidence. The stocks and check were retained by the agent — so the letter states — and the notes, though purporting therein to be forwarded, were mot brought home to Duke. The latter’s bookkeeper, who was the only witness on that subject, testified that he did not remember whether he received them or not. The receipt and acceptance of these securities by Duke could not be proved by the agent’s declaration any more than the settlement itself.

As the letter was in my judgment inadmissible, I shall not consider its effect. I do not wish, however, in refraining from a discussion on that, head to be understood as concurring in Mr. Justice Patterson’s opinion that if conclusively established the accord and satisfaction pleaded; and that that accord and satisfaction embraced the 400 shares of stock in question.

The order should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Rumsey and O’Brien, Jj., concurred; Van Brunt, P. J., concurred in result; Patterson, J., dissented.