The court are of opinion that proof of the admissions and declarations of the surveyor of highways, made long after the alleged contract made by the surveyor with the plaintiff for the removal of snow from the highways of the town had been made, and also after all work done in supposed execution of such contract in the removal of snow had ceased, was incompetent. They were not relied on as impeaching or controlling the testimony of the surveyor, who was the plaintiff’s own witness—which clearly could not be done; but as the concessions and admissions of the defendants themselves, in consequence of the relation of principal and agent, subsisting between the town and the surveyor.
The declarations and statements of an agent, in negotiating a contract for his principal, or in carrying it into execution, are admissible as part of the acts done, and as giving a character to and qualifying the acts, and so within the scope of his authority, and, like all other acts so done, bind his principal. And when it is said that his declarations are competent, made whilst his agency continues, we understand it to mean, not whilst he continues to hold the office in respect to which he made the contract, but during the negotiation or execution of the contract After the particular negotiation or transaction, out of which the controversy grows, has ceased and terminated, though the agent continues to hold the same office, or the same delegated authority, the declarations of the agent are not binding on the principal. His declarations would be mere hearsay, like those of any other person. He may be called as a witness, like any other person; he was so called in the present case. In addition to the authorities cited in the able argument of the counsel for the defendants, we would refer to Bauerman v. Radenius, 7 T. R. 663; and Fairlie v. Hastings, 10 Ves. 123. Exceptions sustained.