#### JONATHAN L. BOOTH and others, Plaintiffs, *v.*THE CLEVELAND ROLLING MILL COMPANY and others, Defendants.

*Becla/rations of*agent— *When the act of the agent can be proved, it is competent to prove what he said about the act while doing it*— Bes gestae— *Objection to evidence*— • *must be taken as soon as its objectionable chm'acter is appa/i'ent.*

Motion by defendants for a new trial on exceptions taken at tbe Circuit, and ordered to be heard at tbe General Term in tbe first instance, after a verdict in favor of tbe plaintiffs.

Tbe action was brought to recover for an alleged breach of contract. The plaintiffs were tbe owners of a patent for an invention known as tbe Booth rail, being a rail for use on railroads, composed of an iron base and a steel cap, made separately, and afterwards put together by clamping, without tbe use of bolts, screws or rivets. In 1867 and 1868, tbe rails were manufactured in small quantities by tbe plaintiffs, and put in use on several roads. On tbe 1st day of June, 1869, tbe defendants, who are manufacturers of rails, entered into a contract, in writing, with tbe plaintiffs, by which tbe plaintiffs gave to tbe defendants tbe right to manufacture tbe rail in question in tbe States of Ohio, Indiana and Illinois, such right being exclusive (except that tbe plaintiffs reserved tbe right to license companies having roads in said States to manufacture for then own roads), so long as tbe defendants should supply tbe demand for tbe rail in those States. All rails were to be of good materials and workmanship. Tbe license was given on certain conditions, one of which was, that tbe defendants were to pay a royalty of two dollars and fifty cents on each ton for tbe first 7,000 *279tons manufactured, payable on the fifteenth of each month for the month preceding. The defendants were “to proceed at once to make said rail in Cleveland, and within a reasonable time in Chicago, and to use all proper effort and due diligence to introduce and sell the same; no other rail made by them to receive more attention or interest than the Booth rail, so long as said rail holds good as a practical and reliable rail for use,” One of the breaches alleged in the complaint, and the only one for which the plaintiffs recovered, was, that the defendants refused to fill an order of The Lake Shore and Michigan Southern Railroad Company for 4,100 tons of the plaintiffs’ rails, on which the plaintiffs would have been entitled to receive from the defendants a royalty of $10,250. For that sum, with interest, the plaintiffs recovered a verdict.

The case has been twice tried. The first trial resulted in a nonsuit, which was reversed at General Term (13 N. T. S. O. R., 591), where it was held that the contract between the parties was not a mere license to the defendants to make and sell the Booth rail, but that, by its provisions, the defendants impliedly promised to perform the conditions therein expressed, according to the terms of the contract, in the performance of which the plaintiff had an interest. That construction of the contract was followed at the last trial.

Several exceptions as to the admission of evidence were taken by the defendants, as to one of which the court at General Term, said: “ It is contended that the court erred in permitting the plaintiff to give in evidence declarations of Chisholm, the vice-president of the defendants, in regard to the rails and steel. The plaintiff Booth, called by the plaintiffs, testified that he was present during the making of some of his rails by The Cleveland Rolling Mill Company, and that, in January, 1871, at the rolling mill where they rolled the solid steel rail and made the cap, he had a conversation with Mr. Chisholm as to the making of the Booth steel and rail, of which work Chisholm had charge. That Chisholm said, ‘ from his experience, he had become satisfied of the success of the invention, and that he never had any apprehension in reference to it, except the possibility of the cap becoming loose under wear, and now he had become satisfied in reference to that, and although ’ — At this point the defendants’ counsel objected to the evidence as *280incompetent. The objection was overruled, tbe defendants excepted, and tbe witness continued: *‘*He said that be was satisfied as to the rail now, perfectly; and that be was satisfied, also, that tbe difficulty was in tbe steel they bad applied to it, and that there was no doubt of that, and they were going to give their steel works more definite attention after this, and be bad no doubt be could make tbe rail a success.’ I am of tbe opinion that tbe whole of this testimony was inadmissible, and if it bad been objected to in season, it should have been excluded. Tbe rule admitting tbe declarations of an agent to affect bis principal has this extent only, that whenever what tbe agent did is admissible, then it is competent to prove what be said about tbe act while be was doing it. It is because it is a verbal act, and part of tbe *res gestee,*that it is admissible at all. (G. Ev., § 113.) Here, although Chisholm was tbe agent of tbe defendant, and bad charge of tbe work of making tbe Booth rails, and was then engaged (it may be assumed) in superintending tbe manufacture of some of those rails, yet tbe declarations bad no connection with tbe particular work which was then going on, or with any act in which Chisholm was then engaged. But tbe objection should have been taken *in Urni/ne,*or, at least, as soon as tbe objectionable character of tbe testimony was apparent. It was not then taken. Tbe witness was permitted, without objection, to detail tbe revelations of Chisholm concerning bis experience, bis apprehensions and bis opinions respecting tbe plaintiffs’ rail, until it became manifest that tbe communications made by their vice-president on that occasion were not favorable to tbe defendants, and then an objection was interposed in tbe midst of a sentence. It is not impossible that tbe delay arose from a laudable wish not to occupy tbe time of tbe court with an objection to what might turn out to be wholly unimportant and harmless, though inadmissible testimony; but if tbe practice were tolerated, it might be used for unworthy purposes, and would lead to mischievous consequences. Under tbe circumstances, tbe defendants should be held to have waived all objection to the testimony, it being responsive to tbe question *{Quin*v. *Lloyd,*41 N. Y., 349); at least, it was in tbe discretion of tbe judge to sustain or overrule tbe objection, and bis decision ought not to be reversed, unless it was a plain abuse of discretion, which it was not.”

*281
      *W. F.*Cogswell, for the plaintiffs. *George F.*Demforth, for tbe defendants.

Opinion by

Smith, J.

Present — Mullin, P. J., Talcott and Smith, JJ.

New trial denied, and judgment ordered for tbe plaintiffs on tbe verdict.