It is said that the declaration of an agent to be competent

evidence against his principal must meet two requirements :

(rt) it must constitute a part of the res gestae of a transaction

In which tiie agent was acting for his princi])al ; (a) it must

1 1 Greenleaf on Ev. В§ 113; Fairlie V. Hastings, 10 Ves- Jr. 123; Bar-

nett V. South London Tram. Co., 18 Q. B. D. 815; Garth v. Howard, 8

Bing. 451; Fogg v. Pew, 10 Gray (Mass.), 409; Lamm v. Port Deposit,

&c. Assn., 49 Md. 233.

* Williams v. lanes, 1 Camix 3G4; Hood v. Reeve, 3 C. & P. 532.

ADMISSIONS BY AGENT. 181

be one which naturally accompanies the transaction and illus-

trates or unfolds its character or quality. ^

(a) The first requirement is briefly stated in the familiar

rule that the declaration must constitute a part of the res

gcstce. This merely means that what an agent says or does

In the conduct of a transaction for his principal is treated

as if it had been said or done by the principal, under the

application of the fiction of identity. The tavm res gestmi^

simply a convenient symbol for conveying this idea. It really

adds nothing, and, because of its literal vagueness and its

somewhat different use in other branches of the law, has led

to some darkening of counsel. If the phrase " of the res

gestce" were omitted from the first sentence in this section,

the idea conveyed would be precisely the same.

The first inquiry is, therefore, whether the declaration

was made as part of a transaction in which the agent was

acting for the principal. If made before or after the trans-

action, it is incompetent as against the principal.^ This

Is stated very clearly in the leading case of White V.

Miller : 3

"The general rule is, that what one person says, out of

court, is not admissible to charge or bind another. The

exception is in cases of agency ; and in cases of agency, the

declarations of the agent are not competent to charge the

principal upon proof merely that the relation of principal and

agent existed when the declarations were made. It must

further appear that the agent, at the time the declarations

were made, was engaged in executing the authority conferred

upon him, and that the declarations related to, and were con-

nected with the business then depending, so that they con-

stituted a part of res gesfceJ^ ^

In the application of this rule tlie courts have not been

entirely harmonious in deciding when the declaration is a

1 White V. Miller, 71 N. Y. 118, 131; Butler v. ISIanhattun Ry. Co.,

143 N. Y. 417, 422.

2 Great W. Ry. v. Willis, IS C B. x. s. 748; Haven v. Brown, 7 Me.

421.

8 71 N. Y. 118, 135.

* See also Fairlie r. Hastings, 10 Ves. Jr. 123.

182 PKINCIPAL AND THIRD I'AKTY.

part of the transaction. Clearly a subsequent narration by

the agent is not.^ Clearly a contempoi'aneous statement by

way of inducement or representation is.^ In contract cases

there seems to be little difficulty in deciding whether the

declaration falls within the first or the second of these

classes, for the moment of the formation or completion of the

contract marks the tei'mination of the transaction.^ Yet

even in such cases admissions may be made, subsequent to the

formation of the contract but relating to it, which will be

proper evidence against the principal provided the agent in^

making the admissions was still within the ordinary course

of his employment or duties. Thus the statement of a station

agent to the police that he believes another servant has

absconded with a parcel delivered for carriage at that station

is admissible.^ So the acknowledgment of an agent in

charge of a business that a certain sum is due for goods

bought in the course of that business is admissible in order

to charge the principal or to take a case out of the Statute of

Limitations.^ It would seem logical to say that whenever an

admission or statement is made by an agent within his osten-

sible authority and operates to mislead a third person, or to

cause him to act, or refrain from acting,_ to his prejudice, the