Page:North Dakota Reports (vol. 1).pdf/183

 case;, of the first judicial district, taking his place.

, Plaintiff and Respondent, v., Defendant and Appellant.

1. Agents’ Admissions; When Not Binding on Principal.

Plaintiff had grounds for suspicion that one M. had stolen a quantity of plaintiff's grain from his granary, and had subsequently delivered such grain to the defendant at its elevator, at La Moure, and within twenty-four hours after M. had actually delivered certain grain at said elevator, and received tickets therefor, plaintiff visited the elevator at La Moure, and there saw L, engaged in buying grain for defendant, and issuing tickets for the same, and in receiving such grain into the defendant’s elevator. Under these circumstances, and in response to inquiries made of L. by plaintiff, L. stated to plaintiff, in substance, that, several hours prior to the time of such conversation, L. had purchased of M., and given him defendant’s elevator tickets therefor, a quantity of grain corresponding in kind and amount to that supposed to have beenstolen from the plaintiff. Held, in an action against the defendant for the value of the grain, that said statements and admissions made by L. as to receiving the grain, and issuing tickets therefor, were inadmissible because not a part of the res gestæ, and their admission in evidence was error. The statements of L. were made concerning a transaction which was within the scope of L.’s authority as agent, but such transaction was closed, and entirely completed, some hours prior to the time at which L. narrated the facts to the plaintiff. The declarations and admissions of L. were not made while the wheat was being received into the elevator; nor were the declarations made spontaneously, and so connected with the principal transaction as to spring from and form a part thereof. Such declarations by the agent were not a necessary part of the duty intrusted to him, and cannot, therefore, bind the principal, in the absence of authority from the principal to make such declarations. Evidence examined, and found not to show that L. had authority from defendant to make the declarations and admissions which were admitted: in evidence.

PPEAL from district court, La Moure county; Hon., Judge.

This action was commenced in justice court in La Moure county in 1888, was tried de novo on appeal in district court of