It was substantially conceded on this appeal that the $700 for which the fifty acres were sold on the foreclosure, should have been credited upon this claim, and the recovery should have been rendered accordingly.
But a very important question arises on the matter of evidence. Lewis Head, the plaintiff, sold and conveyed to Sly Teeter, the defendants’ testator, fifty acres. The claim in this action is that, as a consideration therefor, Sly Teeter orally agreed with Lewis Head to pay a certain mortgage, which covered these fifty acres and fifty-nine acres more. This action is brought on that agreement. To prove the agreement Lewis Head was called as a witness in his own behalf. He testified (under objection and exception) that there was a conversation in his presence between his father, Thomas Head, and Sly Teeter, now deceased. That Thomas Head said: *550“ Mr. Teeter takes the fifty acres, and pays the mortgage of $1,180 and interest after April first, until that time you are to pay the interest, and pays the balance by notes. That Thomas Head turned to Teeter and asked him if that was right, and he nodded his head, assenting; that the talk seemed to be addressed to the witness; that Teeter said yes, and nodded his head.”
This testimony is claimed to have been inadmissible under section 399 of the Code.
It has been decided that a party may testify to a conversation which he overheard between the deceased and a third person, so long as it is limited to what was neither a personal transaction or communication between the witness and the deceased. (Cary v. White, 59 N. Y., 336.) But, in the present ease, Thomas Head was the agent of the plaintiff. In the matter of this conversation he was acting for the plaintiff.
He addressed the plaintiff, stated the alleged contract, and Teeter assented. This was a transaction between Teeter and the plaintiff. It was the same as if either Teeter or the plaintiff had stated the terms of the bargain, and the other party had assented. In the eases relied upon by the plaintiff the transaction has been between the deceased and some third person, while the party testifying has been a mere hearer of the conversation, and not a party to any transaction thereby shown.
But the present case is very similar to that of Brague v. Lord et al., in the Court of Appeals (15 Alb. L. J., 66). The testimony was inadmissible. There must, therefore, be a new trial. I have not thought it necessary to consider the question whether, as the plaintiff has sold the remaining fifty-nine acres, he can recover at all. No opinion is intimated on that question. Judgment reversed; new trial ordered; reference discharged; costs to abide the event
Present — Learned, P. J., Bookes and Boardman, JJ.Judgment reversed; new trial granted; referee discharged, and costs to abide event.