Eakle v. Clarke

EociNSON, J., delivered the opinion of the Court. The appellee and Samuel Horine, being seized of undivided moieties in a certain grist mill, rented the same to the appellant. This suit was brought to recover one-half of the rent claimed to be due the appellee. After evidence on both sides in regard to the contract of renting, the appellant offered to prove by a witness, that Horine, since deceased, admitted, that by the terms of renting, the appellant was to pay to him, Horine and appellee, an annual rent of four hundred and fifty dollars, and that the lessors “ were to keep or pay for keeping said mill in repair.” This declaration was made after the contract of renting, and not in the presence of the appellee.

We know of no rule of law by which this evidence was admissible against the appel-lee. Being the declaration of a third party, it could only bind him, or another having a joint interest. The reason and limit of the rule governing and controlling the admissibility of such declarations or admissions, is very clearly stated in the notes to Bauerman vs. Radenius, 2 Smith’s Leading Cases, 387 : “ So far as the interest is joint and the act of one could affect the other, or bind the whole interest, so far his admission shall affect and bind, and no further.” Or as laid down in 2 Stak. Eki., Part 1, 29, the declaration is not admissible, unless “ the party making such admission or declaration, can be considered as identical