Rowland v. Long

Robinson, J. delivered the opinion of the Court. This suit was brought to recover from the appellant, the contract price of a horse, sold by the appellee, plaintiff below, to one Zeigler, as the agent or partner of the appellant. The first question for us to decide is, whether the declarations of Zeigler, made at the time of the sale and purchase, were admissible in evidence to bind the appellant? Such declarations, it is clear, were not binding upon the appellant, unless Zeigler was at the time his agent, and ⁴⁴⁴ acting within the scope of his authority; nor were they admissible in evidence, unless there was proof from which the agency could be inferred.

Without reviewing the several cases in -which this question has been considered by this Court, it is sufficient to say, that the declarations of a person professing to -act as the agent of another, are not per se admissible in evidence to bind the principal; and in order to make them so, there must be proof aliunde, from which the agency may be inferred. If the proof in this respect be so slight and inconclusive, as not to justify a jury, in the exercise of a reasonable intelligence, to infer the agency, such declarations are inadmissible; on the other hand, if it be legally sufficient to warrant the jury in finding that the party making the declarations was the agent, then they ought to be admitted. It is not easy to lay down a more certain and definite rule. In all cases however, the admissibility of the declarations is a preliminary question for the Court, but agency vel non, is a question for the jury.

Henderson vs. Mayhew, 2 Gill, 409 ; Morrison vs. Whiteside, 17 Md., 459 ; York County Bank vs. Stein, 24 Md., 465 ; Thomas vs. Sternheimer, 29 Md., 271 ; Natl. Mechanics’ Bank of Balt. vs. Natl. Bank of Balt., 36 Md., 20 . The inquiry then on this branch of the case resolves itself into this, was the proof offered by the appellee sufficient to justify the inference that Zeigler was the agent of the appellant at the time such declarations were made?

Now the evidence shows, that prior to the purchase of the plaintiff’s horse, Zeigler had purchased horses of other persons as the agent of the appellant, and that these purchases had been ratified and adopted by the appellant; and that these facts were known to the appellee. In addition to this, when the appellee called upon the appellant for the payment of the purchase money, the latter told him not to be uneasy about the money, that it should be paid, — that ⁴⁴⁵ Zeigler ought to have paid it; and further said, that they had lost money on the purchase of horses. Here then was proof, not only of the adoption and ratification by the appellant of the acts of Zeigler, hut in addition thereto, the pregnant fact, that when the purchase money was demanded of him by the appellee, there was no denial of Zeigler’s agency or authority, — on the contrary, there was an implied admission that the horse had been purchased by the authority of the appellant. This evidence was sufficient, in our opinion, to warrant the jury in finding the agency of Zeigler; and if so, the declarations made by him at the time of the purchase were admissible in evidence.

To rebut the proof thus offered by the appellee, the appellant testified, that he had employed Zeigler