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 and, even if such a distinction could be made, it would not control this case, for the person present at the talk between Henderson and the deceased, conceding him to have been the agent for the deceased in the transactions connected with the matters discussed, could not be agent for his principal, and act for him, in a transaction, when the principal himself was present, and carrying on the negotiations, and conducting the business. The case is therefore assimilated to a case where a third person is present, and under such circumstances the decisions are unanimous that the evidence of the surviving party to the conversation, or transaction is incompetent. Of course, if the talk had been had with the agent alone, it would not have been a conversation with the deceased, and therefore the case would not have fallen within the statute. But no such question is presented on this appeal. For the errors to which we have referred, the order and judgment are reversed, and a new trial is ordered. All concur.

(55 N. W. Rep. 729.)

Personal Injuries—Damages—Effect Upon Mental Powers—Instruction.

In an action to recover for personal injuries, where there is no claim in the complaint or in the evidence that plaintiff's mental powers were in any impaired by the injury, it is error for the trial court to instruct the estimating the damages they may take into account the effect of the injury upon plaintiff's mental powers.

Appeal from District Court, Cass County; McConnell, J.

Action for personal injuries by John Comaskey against the Northern Pacific Railroad Company. Plaintiff had judgment, and defendant appeals.

Reversed.

Ball & Watson, for appellant.