There was no dispute as to the contract which Megraw made with Rice. That undoubtedly covered the $1,000, in addition to the $4,000.
The question" is, Had Rice authority to contract for more than the $4,000 ? Wanamaker distinctly testified that he limited him to the $4,000. Rice did not deny Wanamaker’s testimony as to this limitation. He was not even interrogated upon the subject, probably because his testimony was taken upon commission, and what Wanamaker might say upon the trial was not anticipated. He did testify, however, that Wanamaker agreed that he was to employ all the help in his department; and this testimony was admitted under the plaintiff’s objection and exception. The objection was well taken, and the admission of the testimony was prejudicial. Rice thus asserted a general and unlimited agency; and his conclusion on that head was put to the jury as in conflict with the special limitation testified to by Wanamaker. The learned trial justice charged : “He (Rice) swears that he was authorized by Mr. Thomas Wanamaker to hire an assistant buyer and that the matter of salary was left to him.” The jury were then required to solve this adjudged conflict, and decide whether Rice’s agency with respect to the employment of Megraw was special or general; that is, whether it came under *61the unlimited agreement to employ all the help in his department, testified to hy Rice, or under the special limitation in Megraw’s individual case, testified to by Wanamaker. This was error. The plaintiffs had a right to have Wanamalter’s testimony passed upon by the jury upon its inherent merits, unaffected by Rice's incompetent deductions from an undisclosed conversation. 1Yon constat but, had Rice narrated the conversation in which he says Wanamaker made the agreement which created the general agency, there would have been no conflict with Wanamaker, or, if there were, Wanamaker’s narration might have seemed to the jury more credible than Rice’s. The learned trial justice informed counsel that it was exceedingly doubtful whether the testimony in question and that which followed it was admissible; “ and,” he observed, “ if the witness were on the stand, I should sustain the objection ; but it lias been taken under a commission and I will let the testimony in and give you an exception.”
Again, at the close of the case, we find the following remarks: 41 There undoubtedly were technical and perhaps substantial objections to the form in which Rice gave his testimony as I said at the time; and if Rice had been on the stand, and the objections had been made which were made, I should have sustained the objections, because Rice could then have been further examined, and I assume that he would have said that that was what Mr. Wanamaker told him, instead of using the expression, that Mr. Wanamaker agreed.”
Neither the trial justice nor this court has the right to assume that Rice would thus have testified. The difficulty was not in the interrogatories, but in the answers. The fault, if any, was in not sending the commission back when the defendant’s counsel saw that the witness had testified to conclusions, and had not given evidence of facts. The effect of what thus happened upon the trial was to charge the plaintiffs either upon an unreal conflict of testimony or to deprive them of the opinion of the jury upon the credibility of their witness, uninfluenced by incompetent adverse testimony.
The judgment should be reversed arid a new trial ordered, with costs to the appellants to abide the event.
Judgment affirmed, with costs.