1 Great w. Ry. V. Willis, 18 c. B. N. S. 748; Stiles V. Western r., 8

Met. (Mass.) 44; Phelps v. James, 86 Iowa, 398; Empire Mill Co. v.

Lovell, 77 Iowa, 100; White v. INIiller, supra : Fairlie v. Hastings, supra.

2 Peto V. Hague, 5 Esp. 134 ; Baring V. Clark, 19 Pick. (Mass.) 22c ;

Dick V. Cooper, 24 Pa. St. 217; Burnside r. Grand Trunk Ry., 47 N. H.

5.54.

^ Declarations in the course of a transaction amounting to warranties

or to fraud may be distinguished. In such cases the warranty or the

fraud is the main fact to be established. See, for example. Nelson v.

Cowing, 6 Hill (N. Y.), 336; Jeffrey v. Bigelow, 13 Wend. (N. Y.) 518 ;

Snialley r. Morris, 157 Pa. St. 349. Declarations which are authorized are

also to be distinguished, as where two persons converse by telephone

through the agency of a telephone operator. Oskamp v. Gadsden, 35

Neb. 7.

* Kirkstall Brewery Co. r. Furness Ry., L. R. 9 Q. B. 408. See also

!Morse v. Conn. Riv. R., 6 Gray (Mass.), 450; St. Louis, &c. R. v. Weaver,

35 Kans. 412.

^ Anderson v. Sanderson, Holt N. P. 591 ; Clifford v. Burton, 1 Bing.

199 ; Burt V. Palmer, 5 Esp. 145 ; Webb V. Smith, 6 Colo. 365.

ADMISSIONS BY AGENT. 183

principal should be bound by such admission or statement in

accordance with the usual doctrines of estoppel. ^ But where

no doctrine of estoppel can be invoked, then the question is

narrowed to one of evidence merely, and the inquiry is whether

the declaration constitutes a part of an authorized transaction

then pcndinir, and is therefore a part of the res gestce of that

transaction.^

In cases of pure tort in which no doctrine of estoppel is

api)licable, that is, in cases of declarations by servants adverse

to their masters' interests, the question is more difficult and

more confused, because it is ordinarily no part of the duty of

servants to make declarations or admissions for their masters.

Yet the courts have admitted declarations of servants made

In connection with such torts, where the servant's declaration

or admission is closely connected with his tortious act or

omission and serves to characterize it. How closely the

declaration must be connected in point of time with the act

or omission in order to be admissible as against the principal

Is uncertain. The courts have shifted the line in accordance

with the peculiar circumstances of each case, and their inter-

pretation of the general rule. The test is that the declaration

must be in such close connection with the act or omission

constituting the tort as to be clearly spontaneous and unde-

signed, leaving no opportunity for the ])laying of a part or

the invention of explanations or excuses. If strictly con-

temporaneous, the declaration is admissible.^ If unquestion-

ably suliscquent both as to time and causal relation, the dec-

laration is inadmissible.^ If in point of time subsequent, but

in point of causal relation to the main act substantially con-

temporaneous, the declaration will be admitted by some courts

and rejected by others. One class of cases holds that if the

1 Ante, §§ 102-103.

2 Loomis V. New York &c. R., 159 Mass. 30.

8 Elledge v. Ry. Co., 100 Cal. 282; Bigloy r. Williams, 80 Pa. St.

107.

* Williamson v. Cambridge R., 144 ^lass. 148; Luby r. Hudson Riv.

R., 17 N. Y. 131; Packet Co. r. Clough, 20 Wall. (U. S.) 528; Worden

V. Humeston, &c. R. Co., 72 Iowa, 201.

184 PRINCIPAL AND TIIHM) TARTY.

declaration is clearly tlic result of the main act alone, and

not of that plus possible reliection on the part of the agent

or servant, it is admissible ; anotlior class rejects tliis doc-

trine as too refined for practical ai)i)lication, and holds to

the rule requiring a proximity in time, which might prop-

erly be described as instantaneously successive. This dif-

ference of judicial opinion is well illustrated in VicJcsburgj

^c. Railroad Co. v. O'Brien,^ the Supreme Court of the

United States standing five to four against the admission

of the declaration of a locomotive engineer made from ten

to twenty minutes after an accident. The minority dissented

on the ground that the modern cases have relaxed the strin-

gency of the rule requiring "perfect coincidence" of time.

Perhaps the weight of American authority favors such relax-

ation, guarded by the qualification that the peculiar facts of

each case must determine whether the declaration is unde-

signed and spontaneous,^

{h) The second requirement is that the declaration should

be one which illustrates or unfolds the character or quality

of the main act. " While proximity in point of time with

the act causing the injury is in every case of this kind

essential to make what was said by a third person [agent],

competent evidence against another [principal] as part of

the res gestce, that alone is insufficient, unless what was said

may he considered part of the principal fact, and so a part

of the act itself. But as in this case the . . . [remark] was

not one naturally accompanying the act, or calculated to

unfold its character or quality, it was not admissible as res

gesitoe. . . . Res gestce in a case like this implies substantial

coincidence in time, but if declarations of third persons are

not in their nature a part of the fact, they are not admissible

in evidence, however closely related in point of time."^

1 119 U. S. 99.

2 Alabama, &c. R. v. Hawk, 72 Ala. 112 -, Ohio. &c. Ry. v. Stein, 133

Ind. 243; Ilarriinan v. Stowe, 57 Mo. 93; Hermes i'. Chicago, &c. Ry.,

80 Wis. 500.

8 Butler V. Manhattan Ry. Co., 143 N. Y. 417, 423; Barker v. St.

Louis, &c. R., 126 Mo. 143.

ADMISSIONS BY AGENT. 185

§ 140. Limitation of the rule. — Adverse interest.

A qiialilicatioii of the above rule exists in cases where the

agent is known to be acting for himself, or to have an adverse

interest. Where, for example, the president of a company

pledges the stock of the company for a personal loan, his

representations as to its genuineness do not bind the com-

pany. The pledgee should know in such a case that the

agent's personal interest may lead him to betray his princi-

pal. " It is an old doctrine, from which there has never been

any departure, that an agent cannot bind his principal, even

in matters touching his agency, where he is known to be

acting for himself, or to have an adverse interest."^

1 Manhattan Life Ins. Co. v. Forty-second Street, &c. R., 139 N. Y.

146.

186 PRINCIPAL AND TIIIKD PAKTY.

CHAPTER XII.

NOTICE TO AGENT.

В§ 141. General statement of the rule.

It is a general statement of the law that notice to the agent

in the course of his employment, and of such a nature that it

becomes his duty to communicate it to his principal, is notice

to the principal. In other words, the principal is chargeable

with notice of all the material facts that come to the knowl-

edge of his agent in a transaction in which the agent is act-

ing for the principal.^ If this were not so a purchaser could

always free himself from the possible equities arising from

the acquisition of knowledge of adverse rights in or to the

property purchased, by purchasing through an agent.^ It is

against the policy of the law to place one who deals through

an agent in a better position than one who deals in person.^

But the rule has a wider sweep than this. One who deals

through an agent may be placed in a worse position than one

who deals in person. By the application of the fiction of