By the Court. Daly, J.
If the plaintiffs, when the indigo was delivered to them, made advances upon it to Tully, they acquired thereby a special interest in the property, and by the subsequent delivery of it to the defendants, according [495]*495to the terms upon which Chouteau offered to purchase it, they became entitled to maintain an action against the defendants for the price. Mo contract was made by Chouteau with Tully. He and Gay called at the plaintiffs’ counting room, and Chouteau, according to the witness, Maguire, inquired for indigo, or, as Gay relates it, they were shown a sample of indigo, which the plaintiffs offered for sale. The plaintiffs said the owners were anxious to sell, and proposed to show them the articles, in ceroons. One of the plaintiffs then took them into Wirgman’s store, next door, where the indigo was, and they examined it, Tully being present. Chouteau asked Tully if he would warrant it, which he declined to do ; and Chouteau and Gay then offered eighty cents a pound, which Tully refused to take, and they returned again to the plaintiffs’ counting room, Chouteau taking a sample of the indigo with him, when he, Gay, and one of the plaintiffs examined it more particularly. The plaintiff, Elder, pronounced a part of it spurious; and Chouteau remarked that he would, nevertheless, give ninety cents a pound for it. The ninety cents, according to Gay’s testimony, was not accepted when first offered; but upon a subsequent interview, Mr. White, according to the witnesses’ belief agreed to accept the offer. Maguire’s testimony is, that Chouteau requested the plaintiff, Elder, to communicate his offer to Tully, which was done, and Tully agreed to sell at that price. Gay further says, that he and Chouteau concluded to offer ninety cents per pound for the four ceroons, and divide them between them; that when Chouteau offered to give ninety cents for two ceroons, the offer was refused by the plaintiffs : and that he communicated to them that Chouteau had consented to take two at ninety cents a pound. There is nothing here to show that any contract was made by Chouteau with Tully. He simply, in connection with Gay, offered to give a certain price for a certain quantity of the indigo. The plaintiffs accepted the offer, after communicating with the owner. The indigo was delivered to them, as they insist, upon their advancing a certain sum upon it to Tully, and they sent it to the defendants, upon the terms upon which Chouteau [496]*496agreed to buy it, making out the invoice in their own names. There was no contract executed until the plaintiffs obtained the possession of the property, and delivered it to the defendants ; and if, upon obtaining possession, or before delivery, they had acquired a special property in it, by making advances to Tully upon it, they, as the parties effecting and consummating the salegare entitled to bring an action to recover the price. (Buckman v. Brown, 21 Wend. 110 ; Atkins v. Amben, 2 Esp. R. 493 ; Grove v. Dubois, 1 T. R. 112 ; Paley on Agency, 40.)
It is insisted, however, that the evidence offered, to show that they had paid Tully for it, was improperly received. The only objection made was to the introduction of the draft. In respect to other testimony, tending to show the fact, no exception was taken. Wirgman fixes the day when Chouteau and Gay examined the indigo in his presence, and made the offer of 80 cents, as the 18th of January, 1844, which is the day the draft bears date ; and he states that the indigo was delivered to the plaintiffs upon the same day, or the day after the sale. He says, that before the sale, Tully was pretty low in funds. That he had just taken the benefit of the bankrupt act. That he was needy the very day of the delivery of the indigo to the plaintiffs, and that after the delivery he had money. That about a day after the sale he saw him with money. That when he came out of the plaintiffs’ counting room, he thought he had three or four hundred dollars. That he judged from the size of the bundle of bills, and from the nature and amount of the transaction he had engaged in with the plaintiffs, and the fact that he had no other transaction with them. That from what he knew of Tully’s affairs, he was certain that he could have had no other business or transactions with the plaintiffs but this indigo. That he should certainly have known it if he had. All this was received without objection; and upon this testimony alone, I think, the judge would have been warranted in submitting to the jury, whether the plaintiffs had not paid Tully for the indigo when it was delivered into their possession, and before they delivered it to the defendants. The draft was for §359 97, and the price of the four ceroons, at ninety cents, [497]*497was $381; from which, according to Wirgman, were to be deducted commissions of one per cent., and also five per cent, for six months’ interest and guaranty, a deduction that brings the amount down to the amount of the draft. Wirgman says, that the draft was given to the plaintiffs for their protection. It is drawn to the order of Wirgman, and there is a receipt upon it acknowledging the payment of the amount, bearing date the 22d day of January, 1844, and signed by a clerk of Wirgman, who had authority to sign it; but Wirgman was unable to say whether he had received any money upon it. The only point, therefore, is, whether this draft was admissible, in connection with the other evidence of the acts and declarations of Tully, to show that the plaintiffs had paid him for the indigo. I think it was. It had been shown that Tully was dead, and I think it was admissible under that rule of evidence that permits the acts, declarations, or entries of a deceased person to be given in evidence in certain cases.
Declarations or statements of facts, made by a deceased person, at variance with his interest, which he is presumed to have had a competent knowledge of, or which it was his duty to know, and in respect to which he could have been examined as a witness if alive, are, if pertinent to the matter of inquiry, admissible in evidence as between third parties, whether made at the time of the fact declared, or afterwards. (1 Greenleaf’s Ev. § 147, and the cases there cited; Highman v. Ridgway, 10 East, 109 ; Middleton v. Meeton, 10 Barn. & Cres. 317 ; 1 Phillips’ Ev. p. 255.) Upon the former argument of this case, Judge Ingraham thought, upon the authority of Kent v. Walton, (7 Wend. 256,) and Whittaker v. Brown, (8 Wend. 490,) that any declaration of Tully as the former owner of the property, though made before the sale, was inadmissible. But I do not see that the rule laid down in these cases has any application to the present case. It was held, in Kent v. Walton, that the admission of a deceased payee of a promissory note, that the note was an accommodation note, was not admissible against the person to whom the note had been subsequently transferred. The rule adopted in these oases, that the [498]*498declaration of a former owner of a chose in action is inadmissible to affect the title of those claiming under him, is at variance with the whole current of authority in the other states of the Union and in England ; (Cowen & Hill’s Notes to Phillips’ Ev. pp. 664 to 668 ; Beach v. Wise, 1 Hill, 612, and the authorities collected in the note to that case;) and those cases are, therefore, to he limited to the point expressly decided by them, and are of no authority for any thing beyond it.
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By the Court. Daly, J.
If the plaintiffs, when the indigo was delivered to them, made advances upon it to Tully, they acquired thereby a special interest in the property, and by the subsequent delivery of it to the defendants, according [495]*495to the terms upon which Chouteau offered to purchase it, they became entitled to maintain an action against the defendants for the price. Mo contract was made by Chouteau with Tully. He and Gay called at the plaintiffs’ counting room, and Chouteau, according to the witness, Maguire, inquired for indigo, or, as Gay relates it, they were shown a sample of indigo, which the plaintiffs offered for sale. The plaintiffs said the owners were anxious to sell, and proposed to show them the articles, in ceroons. One of the plaintiffs then took them into Wirgman’s store, next door, where the indigo was, and they examined it, Tully being present. Chouteau asked Tully if he would warrant it, which he declined to do ; and Chouteau and Gay then offered eighty cents a pound, which Tully refused to take, and they returned again to the plaintiffs’ counting room, Chouteau taking a sample of the indigo with him, when he, Gay, and one of the plaintiffs examined it more particularly. The plaintiff, Elder, pronounced a part of it spurious; and Chouteau remarked that he would, nevertheless, give ninety cents a pound for it. The ninety cents, according to Gay’s testimony, was not accepted when first offered; but upon a subsequent interview, Mr. White, according to the witnesses’ belief agreed to accept the offer. Maguire’s testimony is, that Chouteau requested the plaintiff, Elder, to communicate his offer to Tully, which was done, and Tully agreed to sell at that price. Gay further says, that he and Chouteau concluded to offer ninety cents per pound for the four ceroons, and divide them between them; that when Chouteau offered to give ninety cents for two ceroons, the offer was refused by the plaintiffs : and that he communicated to them that Chouteau had consented to take two at ninety cents a pound. There is nothing here to show that any contract was made by Chouteau with Tully. He simply, in connection with Gay, offered to give a certain price for a certain quantity of the indigo. The plaintiffs accepted the offer, after communicating with the owner. The indigo was delivered to them, as they insist, upon their advancing a certain sum upon it to Tully, and they sent it to the defendants, upon the terms upon which Chouteau [496]*496agreed to buy it, making out the invoice in their own names. There was no contract executed until the plaintiffs obtained the possession of the property, and delivered it to the defendants ; and if, upon obtaining possession, or before delivery, they had acquired a special property in it, by making advances to Tully upon it, they, as the parties effecting and consummating the salegare entitled to bring an action to recover the price. (Buckman v. Brown, 21 Wend. 110 ; Atkins v. Amben, 2 Esp. R. 493 ; Grove v. Dubois, 1 T. R. 112 ; Paley on Agency, 40.)
It is insisted, however, that the evidence offered, to show that they had paid Tully for it, was improperly received. The only objection made was to the introduction of the draft. In respect to other testimony, tending to show the fact, no exception was taken. Wirgman fixes the day when Chouteau and Gay examined the indigo in his presence, and made the offer of 80 cents, as the 18th of January, 1844, which is the day the draft bears date ; and he states that the indigo was delivered to the plaintiffs upon the same day, or the day after the sale. He says, that before the sale, Tully was pretty low in funds. That he had just taken the benefit of the bankrupt act. That he was needy the very day of the delivery of the indigo to the plaintiffs, and that after the delivery he had money. That about a day after the sale he saw him with money. That when he came out of the plaintiffs’ counting room, he thought he had three or four hundred dollars. That he judged from the size of the bundle of bills, and from the nature and amount of the transaction he had engaged in with the plaintiffs, and the fact that he had no other transaction with them. That from what he knew of Tully’s affairs, he was certain that he could have had no other business or transactions with the plaintiffs but this indigo. That he should certainly have known it if he had. All this was received without objection; and upon this testimony alone, I think, the judge would have been warranted in submitting to the jury, whether the plaintiffs had not paid Tully for the indigo when it was delivered into their possession, and before they delivered it to the defendants. The draft was for §359 97, and the price of the four ceroons, at ninety cents, [497]*497was $381; from which, according to Wirgman, were to be deducted commissions of one per cent., and also five per cent, for six months’ interest and guaranty, a deduction that brings the amount down to the amount of the draft. Wirgman says, that the draft was given to the plaintiffs for their protection. It is drawn to the order of Wirgman, and there is a receipt upon it acknowledging the payment of the amount, bearing date the 22d day of January, 1844, and signed by a clerk of Wirgman, who had authority to sign it; but Wirgman was unable to say whether he had received any money upon it. The only point, therefore, is, whether this draft was admissible, in connection with the other evidence of the acts and declarations of Tully, to show that the plaintiffs had paid him for the indigo. I think it was. It had been shown that Tully was dead, and I think it was admissible under that rule of evidence that permits the acts, declarations, or entries of a deceased person to be given in evidence in certain cases.
Declarations or statements of facts, made by a deceased person, at variance with his interest, which he is presumed to have had a competent knowledge of, or which it was his duty to know, and in respect to which he could have been examined as a witness if alive, are, if pertinent to the matter of inquiry, admissible in evidence as between third parties, whether made at the time of the fact declared, or afterwards. (1 Greenleaf’s Ev. § 147, and the cases there cited; Highman v. Ridgway, 10 East, 109 ; Middleton v. Meeton, 10 Barn. & Cres. 317 ; 1 Phillips’ Ev. p. 255.) Upon the former argument of this case, Judge Ingraham thought, upon the authority of Kent v. Walton, (7 Wend. 256,) and Whittaker v. Brown, (8 Wend. 490,) that any declaration of Tully as the former owner of the property, though made before the sale, was inadmissible. But I do not see that the rule laid down in these cases has any application to the present case. It was held, in Kent v. Walton, that the admission of a deceased payee of a promissory note, that the note was an accommodation note, was not admissible against the person to whom the note had been subsequently transferred. The rule adopted in these oases, that the [498]*498declaration of a former owner of a chose in action is inadmissible to affect the title of those claiming under him, is at variance with the whole current of authority in the other states of the Union and in England ; (Cowen & Hill’s Notes to Phillips’ Ev. pp. 664 to 668 ; Beach v. Wise, 1 Hill, 612, and the authorities collected in the note to that case;) and those cases are, therefore, to he limited to the point expressly decided by them, and are of no authority for any thing beyond it. The declarations of Tully were not introduced here to defeat the title of the plaintiffs, but to show that they had acquired a special property in the indigo before they delivered it to the defendants, by the payment made to him. If he was alive, he would undoubtedly be a competent witness to show that fact, having no interest in the subject matter of the suit, and the draft drawn by him on the plaintiffs for the price of the indigo, coupled with his other acts, tending to show that he had been paid for it, are, as admissions against his interest, competent evidence in an action between third parties. The act or declaration, when it charges the party making it with the receipt of money on account of a third person, or acknowledges the payment of money due to himself, is deemed an act or declaration against his interest, inasmuch as it would be evidence against him. (1 Greenleaf’s Ev. § 150.) The first judge thought further, that it was inadmissible, because the effect of it was to sustain the title of the party proving the declaration; that it is only the admissions of a former owner of personal property which are against the interest of those claiming under such owners, that can be proved. With respect to declarations or acts of deceased persons, made against their interest, I know of no distinction thus limiting the admissibility of the declaration of a former owner of property. But that the declarations of a deceased person, though he may have been a former owner of the property, a title to which is claimed by the person offering his declaration, and the effect of which is to sustain the right of that person to maintain an action founded upon an alleged sale of it, are admissible upon the broad ground, if that is apparent, that when made they were [499]*499against his interest; as in this instance tending to show that he had been paid by the party offering his declaration, and had no longer any claim to the property.
It is insisted, however, that the declaration here relied upon was not against his interest, as there is room to suppose a connivance between him and the plaintiffs, it being his interest, a defective article having been sold, to avoid any question about fraud, by means of a pretended payment. There is not the slightest ground in the case for such an inference, as neither he nor the plaintiffs could be made answerable for any defect in the quality of the article. He refused to warrant it, and expressly told Chouteau that he did not know any thing about it, nor any thing about the man from whom he had received it. There was a refusal to warrant, Sid it was not a sale by sample. Every thing was communicated to Chouteau in the spirit of fair dealing. Chouteau examined the article for himself. He remarked, while he was examining it, that no man could deceive him in indigo, thus professing an intimate knowledge of the nature of the article, to which Tully did not make the slightest pretence. He said he did not believe it to be a fine article, when he made the first offer for it; and when the plaintiff afterwards picked out some pieces from the sample, and pronounced them spurious, Chouteau said, nevertheless, he would give ninety cents for it. He was told expressly by the plaintiffs that if he bought it, he must buy it on his own judgment; and the witness, Maguire, swears that he knows that Chouteau bought it on his own judgment of the article. It is idle to suppose, under such circumstances, that the defendants could have recourse to Tully or to the plaintiffs for indemnity, though the article had turned out to be wholly worthless. And there is, therefore, no ground to found the presumption of any motive on the part of Tully to get rid of future liability, by means of a pretended payment, concocted between himself and the plaintiffs.
The judge was correct in refusing to nonsuit. The instruction asked for in respect to an implied warranty, was not [500]*500warranted by the case, and the instruction given was pertinent, and all that the defendants were entitled to.