Istence or non-existence of some fact (other than the two named

above) which is material to the issue in controversy between

the parties. The competency of the admission or declaration

will depend in the first instance upon the i)urpose for wliidi it

Is offered, and secondarily upon the relation of the admission

or declaration to the transaction in (luestion and the general

scope of the agency. It is incompetent for either of the first two

pur|)oscs named above, but may be competent for the third.

В§ 137. When alw^ays inadmissible.

The admissions or declarations of an agent cannot be given

In evidence against the principal, eitiier (1) to establish the

fact of the agency, or (2) to establish the nature or extent of

the authority.^ The reason is obvious. The declaration

of the agent that he is agent, or that he has certain dele-

gated powers, is merely an attempt to clothe himself with

authority, and has no tendency to prove that he possesses in

fact the authority wliich he claims. He is holding himselt'

out as agent, whereas the requirement is that the principal

should liold him out as agent in order to work an estoj){)el

against the principal. It is therefore error to admit evidence

of wiiat the agent has said as to his own powers in an action

to liold the principal, and the error is not cured by a charge to

^ Hatch V. Squires, 11 Mich. 1S5; Howe IMacliiiie Co. v. (lark, 15

Kaiis. 102; Bn^hani /•. Peters, 1 (iiay (Ma.ss.), \-VJ; .Mitclium r. Diiiilap,

08 Mo. 418; Buller V. C, b. & q. Ry. Co., 67 Iowa, 206.

ADMISSIONS BY AGENT. 179

the jury that the agency cannot be proved by the agent's own

decLarations, and it is even doubtful whether the withdrawing

of sucli evidence from the consideration of the jury would cure

the error.i Since his express declarations are incompetent to

prove his authority, a fortiori his conduct is incompetent.

It is therefore improper to charge a jury that they may find

the fact of the agency or of the authority if the conduct of the

agent was such as to lead the third party to believe that he

was authorized.^ It is the conduct of the principal and not of

the agent from which authority nmst be inferred.

This is far from saying, however, that an agent is an incom-

petent witness to prove the fact of the agency or authority.

Wliere parol evidence as to the existence of tlie agency or ex-

tent of the authority is admissible at all, the agent is as com-

petent a witness as any other person to testify under oath to

facts within his knowledge touching the agency .^ Even the

old rule of evidence which excluded the testimony of a party

in interest made an exception in favor of the evidence of an

agent produced to prove the fact of the agency.* And this

applies equally where a husband is the agent of his wife or a

wife of her husband.^ But if the authority be conferred

in writing, parol evidence of any kind is generally inadmis-

sible,^ unless it be where the question of authority is only

incidentally involved.'^

/ A confidential communication or report from the agent to

' his principal cannot be used as evidence against the piincipal

by third persons.^

^ Comegys r. American Lumber Co., 8 Wash. 661.

в– ^ Leu V. Mayer, .52 Kans. 419.

8 Indianapolis Chair Mfg. Co. v. Swift, 132 Ind. 197; Rice v. Gove, 22

Pick. (Mass.) 158.

* 1 Greeiileaf on Ev. В§ 416 ; Gould v. Norfolk Lead Co., 9 Cush. (Mass.)

338; Thayer r. Meeker, 86 111. 470.

^ OConner i\ Insurance Co., 31 Wis. 160; Roberts v. N. W. Nat. Ins.

Co., 90 Wis. 210.

6 Xeal c. Patten, 40 Ga. 363.

' Columbia Bridge Co. v. Geisse, 38 N. J. L. 39.

8 Langliorn i\ Allnut, 4 Taunt. 511; Re Devala Provident, &c. Co., 22

Ch. Div. 593.

180 PKINCIPAL AND THIRD PARTY.

§ 138. When admissible. — General rule.

If the admission of the agent is offered in evidence to

establish the existence or non-existence of some fact (other

than that of the existence or extent of the agency), it is neces-

sary, in order that the admission or declaration of the agent

may be binding on his principal, that the following elements

should concur : (1) the fact of the agency must be established ;

(2) the admission or declaration must be in regard to some

matter within the scope of the agent's authority ; (3) the

admission or declaration must (a) constitute a part of

the " n-s [/estce " of a transaction in which the agent was

acting for his principal, and (6) serve to characterize that

transaction.

The first two elements do not call for special discussion.

They involve considerations already familiar to the reader.

There must be an agency and the agent must be acting within

the scope of his authority in oi'der that any aet of his may be

binding on his principal. This is as true of his statements

as of his conduct. If the admissions or declarations have

reference to acts which the agent had no authority to perform,

or to any matter foreign to the agency, they stand on the same

level as statements of strangers and are clearly inadmissible.^

But if the principal refers a third person to an agent for in-

formation concerning a particular matter the statements of

the agent respecting such matter are evidence against the

principal.^

§139. "When admissible. — Res gestae.