The one question upon the trial was: Were the 200 shares owned by plaintiff included in a sale to defendant of shares in the Congress Spring Company consummated December 19, 1890? At that date 1,785 shares were delivered to defendant, and paid for by him. These 1,785 shares were owned, before sale to defendant, by other parties than plaintiff. The plaintiff claims that the sale in fact included his 200 shares, and made the number of shares actually sold 1,985. The plaintiff’s shares were not delivered with the others, nor were they paid for. The sale was negotiated *226on the part of the owners by Mr. Bockes, acting for himself, as owner of a number of the shares delivered, and as agent for the other owners,—each owning and holding his stock in severalty. The agency of Bockes was wholly created by authority from each owner separately, obtained by direct communication with each a short time.prior to the delivery of the 1,785 shares, and after the proposal to buy made to him by defendant through his agent, Mr. Crane. This is the testimony of Mr. Bockes, and is undisputed. None of the owners of stock other than Bodies were present at, or have any knowledge of, the negotiation leading up to the sale, or of the terms of the sale. This simple question of fact was before the jury: Was this sale a sale of 1,985 shares or a sale of 1,785 shares? Obviously, it should have been determined by what was said and done between Bockes on one side and defendant, Sheehan, and his agent, Crane, on the other, and the knowledge each was chargeable with of existing pertinent facts.
On the trial, Bockes, as witness, gave in substance his version of what was said and done. He was flatly contradicted by witness Crane and Sheehan as to all, or most, of the material matters tending to establish plaintiff’s claim, and in a degree, perhaps, contradicted by his own written memoranda, and by plaintiff’s telegram one day after the delivery of the 1,785 shares. To corroborate the testimony of the witness Bockes, or to add to its weight and credit in the minds of the jury, the plaintiff offered to give in evidence a conversation between witness Bockes, the plaintiff, and the other owners of stock, had long anterior to the sale, and long before any sale to defendant was contemplated, to the effect that none of these owners would sell his stock unless all sold. A serious struggle, and a prolonged one, as the printed case shows, took place in the presence of the jury over the admission of this testimony. The conclusion is not unreasonable that the jury were led to believe that this evidence was of great weight, perhaps the turning point in the case. A juryman’s natural course of reasoning respecting this conversation would be:
“This witness says there was a conversation between the owners of the stock at some time. No one disuptes it. Neither Crane nor Sheehan can dispute it; They were not present. The conversation amounted to an agreement that neither owner would sell unless all sold. That means, if either broke this agreement, he would become liable in an action for damages brought by the injured one. Is it likely that Bockes would take that, risk,—subject himself to such an action by the plaintiff?”
Without instruction that such agreement had no binding force,— was absolutely void for lack of consideration, if for no other reason, —our common experience teaches that the effect of such evidence upon the minds of a lay jury would be very great, and in the line indicated. But suppose the jury had been instructed that such an agreement could be only binding upon the conscience, then does not the conscience of this witness become the subject of inquiry to determine how much weight by probabilitiés this jury ought to attach to it? “He would not have sold the 1,785 shares because in conscience he was bound not to sell unless he sold 1,985 shares.” This *227is the plaintiff’s argument, with the court’s approval. Suppose, now, defendant had offered to show that the witness in fact had no conscience, and the argument ought not for that reason to have any weight. Would the trial court have permitted it? Certainly not.
But plaintiff’s counsel says that the witness communicated this conversation to defendant. What was said to defendant is competent; for that the defendant could either admit or deny. But this could furnish no ground for giving a conversation had when defendant was not present, though it were the same conversation; for that the defendant could not deny. If communication to defendant could furnish ground for admission of such testimony, even that ground is hardly furnished here. We are pointed to this question and answer to show such communication to defendant:
“Q. What did you ever say to Judge Crane or Mr. Sheehan in regard to the arrangement that no one would sell the stock without the others? A. I told him that at the time the stock was delivered, and he paid for it. That was the only time I ever spoke to Mr. Sheehan on the subject”
It clearly appears from this that nothing was ever said by witness to defendant on the subject before the delivery and payment.
It should be borne in mind that this conversation, so objected to and admitted, had no remote connection with the authority of Bockes to make a sale. It did not create the agency, and did not qualify or limit such agency. He testifies his agency was wholly created at another time. ¡Nor did this conversation impress any binding conditions upon the stock, its ownership or disposition; and, even if it had been communicated to defendant, it must be presumed that both parties knew it presented no legal obstacle to a separate sale by either owner. I think the admission of this conversation in evidence was error so material and prejudicial to defendant’s case that a new trial should be granted, with costs to abide the event.
MAYHAM, P. J., concurs in result.