Dorne v. Southwork Manufacturing Co.

65 Mass. 205

Opinion

Dewey, J.

The declarations of an agent are competent as evidence to charge the principal, only when they are a part of the res gestee. By this we understand that such declarations are evidence only where they relate to the identical contract that is the matter in controversy. A declaration to another party in reference to another contract, and made at a prior time, does not fall within the rule admitting such evidence. Hence, what was said by the agent to Walbridge in a conversation with him as to the price he would pay for running these machines, is, as to this case, no part of the res gestee, and not admissible. The party is not excused in such case from proving the fact in the ordinary way by the testimony of the agent, if it be one pertinent to the issue. As cases strongly bearing upon this point, see Betham v. Benson, Gow’s Rep. 45 ; Fogg v. Child, 13 Barb. 246.

New trial ordered