Thomas v. Sternheimer

Bartol, C. J., delivered the opinion of the court. The question presented by the appellant’s first, bill of exceptions, is the admissibility of the declarations of William H. Oliver, testified to by the witness Simmons. These declarations were admitted as evidence against the appellant, upon the ground that Oliver was acting as his agent, in delivering the horses of the appellees to the officers of the army; and while so acting made the declarations in question touching the ²⁷² matter in which he was engaged. There was evidence from which such agency might be inferred, and it is well settled that the declarations of an agent so made may be given in evidence against the principal, as part of the res gestee. 1 Greenl.

Ev. sec. 113. The second bill of exceptions was taken to the rejection of the three prayers of the appellant, and to the instruction given to the jury by the court below. The first prayer of the appellant asked the court to declare that there was no sufficient evidence of a conversion; and his second prayer asked an instruction that there was no sufficient evidence in law to sustain the issue on the part of the appellee, the plaintiff below. There was very great conflict in the testimony touching the connection of the appellant with the taking of the appellees’ horses, and disposing of them as his *own to the Government officers.

The testimony of Simmons, taken in connection with that of Robert Gilmor, and of Louis and Jacob Sternheimer, tended to prove those facts, and if believed by the jury, was sufficient to establish a conversion by the appellee. 2 Starkie’s Ev. 839; Dietus v. Fus, 8 Md. 148 ; Harker v. Dement, 9 Gill, 7 . The third prayer of the appellant was also properly refused, because it ignores the material facts, of which there was some evidence, that Lea .and Oliver were the appellant’s agents in taking the horses of the appellees, and delivering them to the Government officers; and it also omits to notice the fact that the horses were so delivered as the property of the appellant, and for his benefit,