delivered the following dissenting-opinion:
The question decided in this case is novel and of great importance to the commercial world.
The terms of a contract are attempted to be established by messages alleged to have been forwarded by-the one to the other of the parties over a line of tele-jdione extending from Morgantown to Bowling Green.
The appellee, being desirous of showing that the appellant agreed to-receive a-lot of hoop poles on the bank of Green river within a certain time, applied to the telephone agent at Morgantown to ascertain from • Sullivan, the appellant,’ at Bowling Green, why he did not attend for the purpose of receiving the poles.
The agent at Morgantown telephoned to the agent at. *492Bowling Green in regard to Sullivan, and sent a message back that Sullivan was present at Bowling Green and would answer for himself.
The message sent by Sullivan was (as Sullivan swears and that fact is nowhere controverted) to the effect that he had not been notified that the hoop poles were ready, and, therefore, did not send to receive them.
The appellee says that the message he received from Sullivan, ajt, Bowling Green, was that the agent of appellant was sick, and for that reason did not send him down. This is denied by Sullivan, and the operator at Morgantown recollects that the message was in regard 'to the hoop poles, but fails to recollect what it was.
The appellee was then allowed to prove what the agent at Morgantown told him as to the character of the message, and that was “that he failed to send because Allen was sick.” He was also allowed to prove by one or two others in the room that the telegraph operator at Morgantown made that statement to the appellee.
It is not pretended that either the appellee or those present heard what was said by the appellant, and all they know, as to the nature of the response made to appellee’s inquiry, is what was told them by the operator, who does not himself recollect what the response ■was.
It is difficult to understand upon what principle this testimony is to be admitted. It can not be said that the operator at Morgantown was the agent of Sullivan, the appellant, at Bowling Green, and for that reason his admissions are binding on the principal. Nor can it be said that he was the agent of Sullivan for the purpose of ascertaining what the contract was, but, on *493the contrary, he was the agent of the appellee. The • latter wanted this agent to inquire of Sullivan, who, doubtless, did not even know him, why he- had failed to take the hoop poles on a named day, and the information was given him by Sullivan, as the latter admits but this admission appellee says is untrue, because the agent of the appellee told other parties, not in the presence of Sullivan, “that the reason you failed to come was that your man was sick.” The agent átapi*recollect what the message was, but those present recollect what the agent said it was.
A telephone agent who makes an inquiry through the telephone for the benefit of and at the instance of another is not made the agent of the party responding. The relation of principal and agent can not arise further than to admit the testimony of the operator as to what the conversation was. He will not be allowed to-close his mouth, and others permitted to testify as to his statements of what passed between him and the party sought to be made liable.
The human voice, by means of this remarkable discovery, may be heard at almost any distance. It. requires neither science nor skill to use it as a means of' conversation, and the result is that almost- any one in the office may be called on to -use it for others, and to establish the rule that the declarations of the one receiving the message as to the substance of the response made is competent testimony, is subversive not only of a well recognized rule of evidence, but dangerous in its application.
The operator is not an interpreter in a legal sense. Where persons of different nationalities are unable to-*494■understand each other, they call on an interpreter, and he speaks for them, in their presence ; those present hear his statements. This is original testimony; as much so as if the same witnesses were present and heard the parties themselves conversing with each ■ other. There is no analogy between the case of an interpreter and that of a telephone operator. Here the parties conversing are miles apart. The one is called to ■respond to*“fehe other. When Sullivan responds, he is responding to Kirkendorf, although through the agency of another. That operator can swear to what the statements were, but his declarations are no more competent than if Kirkendorf himself had talked to Sullivan, and reported to others what Sullivan said. If the operator’s •statements are competent, so could Kirkendorf’s have -been if he had made the inquiry and heard the response. That one may constitute another his agent by telephone is not questioned, but that one who responds to an inquiry makes the party to whom he responds such an agent as that the latter’s declarations are competent against him, I deny.
To illustrate the position assumed in this case, and leaving the telephone for a brief moment, the appellee sends the operator at Morgantown to Bowling Green to know of Sullivan why he failed to take the timbers. He makes the inquiry of Sullivan and reports to those ■present in the room at the time, that Sullivan told him it was because “Allen was sick.” This Sullivan denies. Is it then competent for Kirkendorf to prove by those present (the operator not recollecting) what report the operator made to them ? If Sullivan heard what the • operator said to the by-standers it would be competent, *495or if it could be inferred that he heard what was said ■it might be competent, but when yon concede that he did not hear, as must have been the case when he was telephoned, it would be clearly incompetent. The ■ operator would be as much the agent of Sullivan in the one case as in the other, but really not the agent in either-instance.
Two merchants on one side of Main street propose to buy one hundred barrels of pork from a merchant on the opposite side. The one directs' his clerk to telephone the merchant on the opposite side of the street that he will give him ten dollars per barrel for the one hundred barrels. The clerk telephones and reports the response to his principal and those present that the proposition is accepted. The other merchant, who has no telephone, directs his clerk to step to the door and ■ call to the merchant on the opposite side, making the same proposition. He does so'and reports an acceptance of the proposition. The' merchant refused to deliver the pork in either instance, because he says he . agreed to take twelve dollars per barrel and this was his response, and he proves this to have been the response made, by himself and those present. The two ■ clerks fail to recollect what the response -was, but it is ■ offered in each instance to prove the report made by -the two clerks to their principal, and in this manner contradict the statement of those who heard the response made.
Can such testimony be competent? It is certainly incompetent in the one case and not competent in the •other, unless the necessities of trade connected with this new discovery require a departure from a well *496recognized rule of evidence. It is at last a question solely as to what the conversation was. Those who heard it are competent witnesses, but their statements to others as to what they heard are inadmissible.
Suppose Sullivan, instead of talking himself, had conversed through the operator at Bowling Green, then the statements of the operator at Morgantown, according to the principal opinion, could be competent to contradict the oath of the operator at Bowling Green as to the message sent by him. That this could be done, if the operator at Morgantown was called as a witness, is not doubted, but his statements to others as to the conversation should have been excluded. Nor can such testimony be admitted upon the ground that it was the best testimony the appellee, under the circumstances, could produce. Such a rule would open the door for all hearsay testimony. Such agents could easily be found willing to report a conversation to others that they would not swear to themselves.
It is maintained, however, that this operator was an. agent, and acting within the scope of his authority, and, therefore, his statements are admissible. What was the scope of his authority ? Are the statements of an agent for a special purpose admissible to prove the extent of his authority % If so, it is a novel doctrine. The acts of an agent may be permitted so as to ^presume general authority, but where the power is special and he departs from it, his transaction is void. So if A authorizes B to tell C that he will take his poles on a fixed day, and B tells him that A will take them ten days prior to that time, there being no other agency, he has no power to bind A, and certainly his statements *497are not competent to show tlie extent of the special agency.
The testimony is purely hearsay, and all the reasons induced by consideration of both public and private interests, for excluding that character of testimony, apply with great force to this case.
While I concur in the reversal of the judgment, I must dissent from so much of the opinion as authorizes the admission of this testimony.