#### Richard Lathers Appellant, *against*Jacob H. Hunt, Respondent.

(Decided July 18th, 1890.)

Although letters written by one person are not admissible to prove ms agency for another, they may be competent against the latter as part of the *res gestee,*where they relate to the matter in controversy, and the agency is otherwise proved.

Defendant, being indebted to plaintiff for rent, executed to him a chattel mortgage of his household goods on the demised premises. Defendant subsequently abandoned the premises and the goods, and plaintiff took ■ possession thereof. *Held,*that his taking possession of and caring for the *350goods did not constitute a conversion thereof, or an appropriation of them in satisfaction of the mortgage debt.

In an action for the rent, defendant set up such taking of the property as a defense. *Held,*that plaintiff should be permitted to show that he never used it himself or allowed others to use it, and had never reaped any advantage from its possession.

Even if there had been a conversion or appropriation of the property by plaintiff, he would only be chargeable with its value at'the time, there being no evidence that he took it in full satisfaction; and, therefore, the exclusion of evidence of such value was error.

Appeal from a judgment of the District Court in the City of New York for the Eleventh Judicial District.

The facts are stated in the opinion and in the report of the decision on the former appeal, *ante,*p. 135.

*Joseph Walmsley,*for appellant.

*L. B. Bunnell,*for respondent.

Bookstavek, J.

The action was brought by the plaintiff to recover the sum of $150 due from the defendant for the rent of a certain flat in East 93rd Street. The answer practically admitted the rent due, but set up that the defendant, in order to secure its payment, executed to plaintiff a chattel mortgage on certain furniture and carpets then in the flat in question, that the plaintiff afterwards took possession of the same and used it, and had derived great benefit from such use, While the defendant had suffered damage by reason thereof, and sought to offset or counterclaim the damage against the rent. It also set up as a separate defense that the plaintiff had exercised his right to foreclose the chattel mortgage by assuming and exercising the right of ownership, since about the month of October, 1887, and had thereby discharged the defendant from all obligation for the rent in question.

Appellant contends that certain letters written by Richard Lathers, Jr., were improperly admitted in evidence, under the well-settled rule that the declarations of a man cannot be given in evidence to prove that he is the agent of another; *351but, while they were not competent for that purpose, we think they were properly admitted as a part of the *res*gestee, all of them having been written in relation to the matters in controversy, and his agency having been sufficiently proven by other evidence; he, and he alone, let the flat to the defendant; he collected the rent and gave receipts therefor; when the rent fell in arrear he required security, rejected certain stocks, offered and selected the furniture, etc., to be included in the chattel mortgage, had that drawn up in his own name, although there was no other debt than that for rent due either the plaintiff or the younger Lathers; and the latter must be held to have acted for the plaintiff in that matter. So, too, when the defendant was about to give up the flat, he was consulted about letting Mrs. Bryan, an inmate of defendant’s family, have the same for the remainder of defendant’s term, and afterwards let the same to her for a . new term.

But when this case was before this court on a former appeal, we held that there was no conversion of the mortgaged property when the defendant moved out of the flat leaving it in possession of Mrs. Bryan, to whom he gave express permission to use it while she occupied the premises in his place, or afterwards, when the plaintiff let the flat to her for a new term; and on the present trial, that view is confirmed by the oral testimony given on plaintiff’s behalf and the lease introduced in evidence, which clearly shows it was of the flat alone, and that the property in question simply remained as defendant had left it. Afteq Mrs. Bryan left the flat in July, 1888, and abandoned the property, the plaintiff took possession of the flat and put the property in other'and unoccupied apartments in the same or adjoining house, and sent the carpets to be cleaned. He had a right, and it was his duty, to care for the property so abandoned, and his taking such possession under the circumstances did not satisfy the debt or amount to an appropriation of the property toward that purpose, as pointed out in the opinions delivered on the former appeal; and if we were warranted in reversing the judgment then, for these reasons, defendant’s *352case is certainly no stronger on this appeal, and the judgment must be reversed again.

Under the opinions then delivered by the court, and the issues raised by the pleadings, it was essential that the defendant show a conversion of the mortgaged property on the part of the plaintiff or an appropriation of it to the full or partial payment of his claim. It was just as material and important for the plaintiff to present any evidence which would tend to disprove either of these facts, yet when he undertook to show that he had never so converted or appropriated it, that he had never used it himself or allowed others to use it, that he had never let it, or together with other furniture, and had never reaped any advantage from its possession, the court below on defendant’s objection refused to permit him to do so, although we think such testimony went to the very gist of the defense interposed, and it was error to exclude it. It is in vain that the respondent seeks to have us draw inferences from isolated facts after excluding such evidence.

We also held, on the former appeal, that if there had been a conversion or an appropriation of the property, that would have entitled the respondent to a credit upon the debt, to the extent of the value of the property so converted; yet on this trial the court below excluded all testimony of such value either at the time the mortgage was given or at any subsequent time. This we think was clearly error, for the plaintiff is only chargeable with the value of the property at the time of the appropriation, unless indeed he took it in full satisfaction of his debt, of which there is no proof in the return in this case.

The judgment should therefore be reversed and a new trial ordered, with costs of this appeal to the appellant to abide the event.

Allen, J., concurred.

Judgment reversed and new trial ordered, with costs to appellant to abide event.