Ripley v. Mason

1 Hill & Den. 66

• Court: New York Supreme Court
• Decided: July 1, 1843
• Status: Published

Opinion

By the Court,

Cowen, J.

The loan was made by the plaintiff’s wife as his agent. Her authority was clearly shown. She lent the money on the terms that the defendant should take a cow at the price of thirty dollars. It was quite material to see whether the taking of the cow was imposed upon him as a condition of the loan; and any declaration that the Avife made on this subject, while acting in relation to. the loan, Avould have been admissible. But the , referees allowed her subsequent declarations to be given in evidence, though objected to. The history she gave to Randal Palmer Avas after the transaction Avith the defendant, and clearly imported that she would not have loaned him the money except on his taking the coav. This alone might not perhaps be good ground for granting a rehearing; for, that the taking of the coav was made a condition, was abundantly proved by other testimony. Indeed it was scarcely disputed; and the parties addressed themselves to the actual value of the coav. If she was worth the thirty dollars in cash, as several Avitnesses SAVore, the transaction might not perhaps have been usurious. The value Avas no doubt material, and on this point the testimony was conflicting. Yet a part of •the Avife’s declaration to Palmer was, in dffect, that though the coav was not Avorth thirty dollars, her husband’s orders were that she must make the money go to sell it, which she had done. This too Avas after the objection that the wife’s declarations were inadmissible. Clearly it was not a part of the res gestee, and we can not say that the plaintiff was not prejudiced by such testimony.

The report must be set ‘aside on the ground that the declarations of the Avife as to the value of the cow were improperly admitted.

Report of referees set aside.