Seymour v. Matteson

42 How. Pr. 496

• Court: New York Supreme Court
• Decided: January 15, 1872
• Status: Published

Opinion

Mullin, P. J.

The plaintiff brought this action in a justices court, to recover the price of milk alleged to have been sold and delivered by them to the defendant in 1868.

The answer contained a general denial, that the parties tiad settled, and a counter claim in behalf of the defendant against the plaintiff.

On the trial, the plaintiffs witnesses testified, that the defendant at the time the agreement to sell the milk was made, told plaintiffs, that a man by the name of Stone, was to make the milk into cheese, and any bargain they might make with Stone would be the same as if made with himself. The plaintiffs then asked the witness whether Stone when he came to plaintiffs said defendant had sent him to complete the bargain. This evidence was objected to, the objection was overruled, and the defendant’s counsel excepted.

This evidence was clearly competent, it was the statement of the agent as to the very business in which he was employed by his principal to act for him. The defendant himself proved his authority. The plaintiff did not attempt' to prove it by the declarations of the agent.

The defendant testified in his own behalf, that there was •a written agreement between him and Stone, under which he Stone, bought his defendant’s milk, and carried on the factory. The defendant then offered said agreement in evidence, and it was objected to, and rejected.

It was incompetent, it was res inter Mias acta, and could only be used as a sort of moral support of the evidence of the defendant. The agreement was properly rejected. The order of the county court refusing a new trial, affirmed.