No exceptions having been taken to the charge . of the judge to the jury, that must be assumed to have been correct. This leaves for examination by this court only the exceptions taken by the defendant to the rulings of the court upon the competency of evidence.
In considering these exceptions, the questions in issue must be kept in view. These were: First, Avhether, after the maturity of the note, the surety, Fitch, while his principal, Crounse, was solvent, requested the holder to proceed and collect the note of the.principal, and whether the holder delayed to prosecute until the principal became insolvent; and, Second, whether the note had been paid by the principal.
TTpon the first issue the only question made, as appears by the case, was whether the principal debtor, Crounse, was solvent at the time the request was made by Fitch to collect the note of him. This, it appears, led to an inquiry as to the value of the property owned by him at the time of the request (December, 1856).
For the purpose of showing the value of a portion of the property (certain hotel furniture), the plaintiff offered to prove what it sold for at a public sale in March, 1857. The judge held the evidence competent, to which the defendant excepted. I think this ruling was correct.
It was held in Campbell v. Woodworth, 20 N. Y. 499, that the price for which goods sold at public auction was competent eAridence for the consideration of a jury upon the question of *477the value of the goods. In this case the question was as to the value of the furniture in December. The sale was in March thereafter. The difference in time is not so great, when the kind of property in question is considered, as to justify the exclusion of the evidence. If anything had occurred between December and March materially affecting the value of the furniture, it was competent for the defendant to show it, and thus enable the jury upon all the "evidence to determine its value in December.
Upon the issue of payment by the principal, Crounse, the case shows that the only question at the trial was whether, when the plaintiff paid Ogsbury, the holder, the amount of the note, he did it as purchaser of the note from him, or whether he loaned the money to the principal, and the note was paid by him therewith to the holder.
Upon this issue it is manifest that all statements made by the principal to the holder of the note, not in presence of the plaintiffs, or either of them, and of which they had no knowledge at the time they advanced the money, were inadmissible to affect , their rights.
' The judge was right in excluding the statements made by the principal to Ogsbury, that he would borrow the money of the plaintiffs and pay the note. There was nothing tending to show that either of the plaintiffs knew anything of these statements. They formed no part of the res gestee. The understanding of Ogsbury as to the effect of the transaction was properly excluded. The plaintiffs knew nothing of this. The rights of the plaintiffs must be determined by what was said and done at the time they paid the money.
At first view it would appear that Ogsbury, the agent, who transacted the business with the plaintiffs for the holder, should have been permitted to answer the question whether he delivered the note to the plaintiffs, and whether he sold it to them. But the case shows that be was permitted to and did testify to all that was said and done on that occasion. From these latter facts the effect of the transaction was to be determined. The witness had no right to express any opinion upon their effect after testifying fully to all that was said and done.
An answer to the question, would have been nothing more.
*478The declarations of the principal to Ogsbury, the agent, after the completion of the business, as they were leaving the store, were not admissible. They were no part of the-res gestm. They were not made in the hearing of the plaintiffs. Their being made directly after the completion of the business does not affect the question. Whether made minutes, hours, or days after, they were equally incompetent. The evidence that the principal said the note was paid, was properly excluded. He was introduced as a witness by the plaintiffs, and examined as to his property and the incumbrances thereon, and the debts owing by him, but gave no evidence as to whether the note had been paid. The statement, therefore, did not contradict any testimony given by him. When the defendant, upon cross-examination, inquired of him whether he had made such statement, he was concluded by his answer that he had not. The statement, if made, was collateral to any testimony given by the witness. The witness could not be impeached by proof that that he had never made the statement. This can only be done when the statement tends to contradict the testimony of the witness.
The evidence that the plaintiffs, in a conversation between themselves, after being applied to for the money, said, one to the other, that it was best to purchase, was not competent, and the defendant’s exception thereto was well taken. On this ground the judgment must be reversed, and a new trial granted, unless it clearly appears from the case that the defendant could not have received any prejudice from the testimony.
[The rest of the opinion was to the effect that the defendant could not have been prejudiced by the error in receiving the testimony, in which the court did not concur.]
The Court,not being certain that the admission of the evi-
dence as to the conversations between the partners, had not prejudiced the defendant, reversed the judgment and ordered a new trial.
Judgment reversed, and a new trial ordered, costs to abide the event.