Anderson v. Broad , 2 E.D. Smith 530 ( 1854 )

By the Court. Ingraham, First J.

Upon the trial, Devoe was examined as a witness, and he testified to the conversations between him and Swords at the time of sale, on a cross-examination by the plaintiff. The plaintiff then called Swords as a witness, and examined him as to the representations made by Devoe to him, at the time of selling the note, to which the defendant objected. The object of this examination was to show, from the declarations of Devoe, that he represented the note to be a business note.

Had these representations been made by Inglee, there could be no doubt that they would be properly admitted. He was the agent of the defendants. to sell the. note. He had authority to make the best of it. He was told by Morgan, the payee, that it was a good note, and if he had sold it to the plaintiff, and made such representations, they would have bound the defendants, as made within the scope of the authority which the agent possessed in making the sale. The only difficulty arises from the fact, that Devoe, who made the representations, was not the immediate agent of the defendants, but was employed by Inglee.

Ordinarily, an agent, unless so authorized, cannot delegate his authority; but where it appears that the agency does not, in the performance of it, require any exercise of judgment or discretion on the part of the agent, but may be discharged by the employees of the agent as well as by himself, the strictness of the rule may be relaxed. And where the sub-agent has followed the instructions given by the principal to the agent, the principal should not be allowed to deny the agency, after adopting the same by the receiptc-of. the proceeds.

I think, also, the evidence was admissible, as part of the transaction attending the sale of the note. The. defendant had proved, by Devoe, the sale of the note to Swords, and the amount for which it was sold. The plaintiff had a right to call out the whole of the conversation at the time the sale was effected. This formed a part of it, and preceded the portion which Devoe had previously testified to.

If it was not proper to use it as testimony in making out an estoppel, still the evidence should have been received, and the effect of it limited by a proper instruction to the jury. Although there may be some doubt as to the effect that should be given to representations made by a sub-agent, still I think they should not have been excluded in this case, after the defendants had proven a part of the conversation at which they were made.

Judgment affirmed.