Page:North Dakota Reports (vol. 1).pdf/188

 States had occasion to refer to the rule as stated by Judge Story, and said: “A close attention to this rule, which is of universal acceptance, will solve almost every difficulty. But an act done by an agent cannot be varied, qualified, or explained, either by his declarations, which amount to no more than a mere narrative of a past occurrence, or by an isolated conversation held, or an isolated act done, at a later period. The reason is that the agent to do the act is not authorized to narrate what he has done, or how he has done it, and his declaration is no part of the res gestæ.” See Railroad vs. O’Brien, 119 U. 8S. 99. 7 Sup. Ct. Rep. 118. Mechem, in his treatise on Agency, (section 714,) in stating the grounds of the doctrine, uses the following language: “The reason is that, while the agent was authorized to act or speak at the time and within the scope of his authority, he is not authorized at a subsequent time to narrate what he had done, or how he did it.” The following cases sustain and illustrate the strict rule: Randall v. Telegraph Co. 54 Wis. 140, 11 N. W. Rep. 419; First Nat. Bank v. Ocean Nat. Bank, 60 N. Y. 278; Waldele v. Railway Co., 95 N. Y. 274; Lund v. Tyngsborough, 9 Cush. 36; McDermott v. Railway Co., 73 Mo. 516; also Durkee v. Railroad Co. 11 Pac. Rep. 130; Bank v. North, 6 Dak. 136, 41 N. W. 736,

Applying the rule as stated by these authorities to the facts of this case we have no difficulty in reaching the conclusion that Lighthall’s statements and declarations, which were made to the plaintiff some hours after the transaction with McCann had closed, and after McCann had departed, did not constitute any part of the act of receiving the wheat into the defendant’s elevator, and were not contemporaneous with the act; but, on the contrary, such declarations were a mere isolated narrative of a closed and past transaction, and hence were not a part of the res gest, and therefore were inadmissible in evidence under the rule. But the strict rule has been relaxed somewhat in a number of the later American cases; and, aside from federal courts, the tendency in some of the states is to regard the mere point of time as less material, and to treat the declarations as admissible as part of the res gestæ if they spring directly from the transaction in controversy, and tend to