ON REHEARING.
Thompson, J.A motion for rehearing, and a reargument which has taken place on the rehearing which we granted, have not served to convince us that we were *80in error as to the principles of law that must be applied to tlie state of facts exhibited at the last trial. But the reconsideration, which we have given to the case, has raised a doubt in our minds upon the question, whether the theory of law upon which we disposed of the case in our opinion, was the theory of either party under the pleadings, and whether that theory was contested in the court below. If it was not so contested, our judgment, in so far as it finally disposes of the case, violates the well-settled rule of appellate procedure, that a cause cannot be tried on one theory in the trial court and disposed of on another theory in the appellate court. The plaintiff is entitled to a fair opportunity to show a state of facts which will take the case o.ut of the principles of law announced by this court in its opinion, if he can. We adhere to that opinion as an expression of our views as to the governing principles of law on the facts disclosed at the last trial, but modify our judgment so as to remand the cause for proceedings not inconsistent therewith.
In view of the cause being remanded, it is proper to add that, in the judgment of this court, the trial court committed error in admitting evidence of the conversation which passed between the plaintiff and his agent Fisher, after Fisher had undertaken to rescind the contract. The authority which a principal has given his agent is a fact which may be proved by giving in evidence any words, oral or written, by which that authority was communicated, and that is not hearsay evidence. But, after the authority has been given and executed by the agent, the conversations between the principal and the agent consisting of questionings by the principal and explanations by the agent as to why he executed the authority as he did, are, on plain grounds, merely hearsay evidence as against a third party.
But we do not take the view that the court erred in admitting in evidence the conversations which took place between Gfehner and the plaintiff, and Gfehner’s *81statements concerning the title, while Gf-ehner’s agency for the defendant subsisted. It was natural, and probably within the intention of the parties, that any facts which the plaintiff might wish to communicate to th,e defendant concerning the title should be communicated to Glehner, just as a litigant communicates with the attorney of the opposite party to the litigation.- The declarations of Grehner in these conversations as to what would be necessary to make the title satisfactory were, therefore, a part of the res gestee, though not conclusive upon the defendant.
We do not think it necessary to examine in detail the instructions which were given and refused, because we have indicated in our last opinion a theory of the law entirely different from the one on which the case was submitted to the jury, and, therefore, on another trial the instructions will probably have to be recast.
All the judges concurring, the judgment of the circuit court is reversed and the cause remanded.