#### The Stillwater Turnpike Co. *v.*Ann E. Coover.

Where the plaintiff, on the trial, introduced in evidence a portion of an entry in the minute book of the defendant (a corporation), for a particular purpose, the latter properly introduced the remaining portion of it, without thereby precluding itself from asking, or relieving the court from the duty of giving to the jury a proper instruction requested, in reference to the entire entry; and it was error frr the court to refuse to give such instructions, when requested.

Error to the Superior Court of Montgomery county.

The petition charges that the defendant, the Stillwater Turnpike Company, the owner and in charge of a turnpike, *559into one side of which, and near the center, the plaintiff in error had wrongfully caused a deep and wide hole to be dug, and wrongfully and negligently allowed'it to remain open, and on the 14th of March, 1869, at night, the plaintiff below, while lawfully traveling on said road in a buggy drawn by two horses, was, without her fault or carelessness, but by reason of the wrongful and careless conduct of the defendant in leaving the hole open, thrown into said hole, by which her collar-bone, breast-bone, and several of her ribs were broken, and her health permanently injured.

The answer denies all the allegations of the petition.

On the trial there was a verdict for the plaintiff!

There was a motion for a new trial on the following, among other grounds:

1. That the court erred in its charge to the jury.

2. That the court erred in refusing to charge as requested by the plaintiff.

3. That the court improperly admitted testimony offered in behalf of the defendant.

The motion for a new trial was overruled and the defendant excepted, and judgment was entered on the verdict for the plaintiff.

The bill of exceptions, among other things, shows that, on the trial, the plaintiff having produced evidence to prove that the plaintiff, on the 14th day of March, 1869, was at Dayton, Ohio, on a visit; that one John McDargh, a neighbor, who had two horses and a buggy with him, came to take the plaintiff home to her father’s house, and when it was dark, and while they were proceeding in the traveled part of said turnpike road of the defendant, the plaintiff and McDargh and said team were thrown, with great violence, into an excavation, which had been made in the turnpike road by the agents of said defendant, and that the company had carelessly and negligently left the hole to remain open; that the plaintiff was badly injured and that the buggy was broken and damaged. Then the plaintiff, further to maintain the issue on her part, produced the book of minutes of the proceedings of the *560board of directors of said company, and having proved the same to be the minutes of said board, offered in evidence the following extract therefrom, being part of the proceedings of said hoard at a meeting held March 20, 1869:

“ Be it' resolved by the hoard that the board assume the payment of all the necessary damage done to John W. Mc-Dargh’s buggy in the repairs of the same, and that the hoard meet Monday next, at nine o’clock, to investigate the circumstances connected with said accident.”

The defendant objected to the evidence as incompetent, but the court overruled the objection and admitted said resolution to he read in evidence to the jury, to which ruling the defendant excepted.

And further to sustain the issue on her part, the said plaintiff" produced one Frank "Wilhelm, who, being sworn as a witness, testified that he was present at a meeting of the hoard of directors of said company when the claim for damages by John McDargh was presented to the hoard for allowance, and that the company on that day admitted its liability to John McDargh for the injury which was done to the buggy of said McDargh by being thrown from the turnpike into the hole which had been made in the turnpike road, into which the said John McDargh, with his team, and with the plaintiff, ivas thrown on the 14th of March, 1869, and the defendant moved the court to exclude the testimony of said Frank Wilhelm from the jury, but the court overruled the motion and permitted the evidence to go to the jury, to which ruling the defendant excepts.

The plaintiff, further to sustain the issue on her part, offered in evidence the following portion of the proceedings of the hoard of direetoi s at a meeting of the board held on the 13th of September, 1869, viz:

“ This meeting was called to take into consideration the propriety of paying damages to Ann Coover for an accident happened to her by there being a hole excavated by some person or persons in the bounds of said road, and the carriage being capsized in the excavation made therein, and she being severely injured by said accident.”

*561The defendant excepted to the admission of that portion of the minutes as evidence, but the court allowed the same-to be read in evidence to the jury, to which ruling the defendant excepted, and thereupon the defendant, by his counsel, offered the residue of said minute entry in evidence, plaintiff’s attorney' not insisting on his objection thereto — “ "Whereas, Ann Coover has made a proposition through John M. Coover for a compromise in her case of her accident in consequence of said excavation, as above-stated, said proposition is as follows: that she will take the-road in fee-simple or $1,500 in money; be it resolved by the board that we reject her propositions, and that said hoard offer her, the said Ann Coover, by way of compromise for a final settlement, the sum of $500 for the damages she has sustained by the accident as above stated, and. that there be a committee appointed for the purpose of making this offer and compromise, A. Eenner and H.. Way mire being appointed said committee.” And thereupon the defendant moved the court to exclude from the-jury the whole of said minute entry; but the court overruled said motion, to which the defendant, by its counsel,, excepted.

And the defendant, at the close of the testimony, asked the court to charge the jury that “ there is nothing in the-minute entry of the date of September 13, 1869, from which the jury can properly infer that the board of directors admitted the liability of the company.” But the court refused to so charge.

To which refusal to charge, defendant excepted.

And the plaintiff having introduced testimony tending to-prove that Augustus Eenner and Henry Waymire, directors of the company, appointed by the board a committee to effect a compromise, admitted the liability of defendant to plaintiff for damages for her injuries, defendant offered testimony tending to prove that said Eenner and Waymire, at the time of said supposed admissions, were acting as a committee from said company merely to visit said plaintiff *562for the purpose of getting from her an offer by way of compromise ; and at the close of the testimony the defendant asked the court to charge the jury that, “ An admission of liability made by a member of the company will not be binding so as to charge the company, if that member was simply empowered to offer a sum by way of compromise to settle the claim.” But the court refused so to charge the jury, but did charge as appears at the close of fhis bill of exceptions; to which refusal to charge as requested, and the charge as given, the said defendant, by its •counsel, excepted.

The errors assigned are those relied on in the motion for a new trial.

*Howard § Howard,*for plaintiff in error:

A portion of the minute entry in the books of the defendant, having been introduced by the plaintiff, it was competent for the defendant, in self-defense, to introduce the rest of it for the purpose of showing what force and effect was to be given to the part offered by the plaintiff

The whole entry, taken together, was nothing but a proposition for a compromise, and the court should have directed the jury just what use they should make of it. The refusal to do so was error.

The admission of the testimony of Frank Wilhelm was clearly objectionable. It was an attempt to show by parol the corporate acts of the company, but no argument can make this objection clearer than the simple statement in the bill of exceptions, to which the court is referred.

*Conover Craighead,*for defendant in error:

The testimony of Wilhelm was properly admitted; for showing the company’s acknowledgment of liability to MeDargh, it tended, under the circumstances of this case, to prove its liability to the defendant in error.

The matter to which he swears is not such as must be shown by the journal of the company. He simply gave the parol declarations of the directors assembled in regular *563board meeting. *Magill*v. *Kauffman,*4 Serg. *&*R. 317; Angell & Ames on Corp., sec. 240; 2 Kent, 291; *Bank of Columbia*v. *Patterson,*7 Cranch, 305; *Hartford Bank*v. *Hart,*3 Day, 491.

2. The facts utterly forbid the suggestion that the entry in the books of the defendant was made merely to induce .a compromise. They plainly indicate that it was made ¡simply because it was true.

This, then, being the admission of a fact — made obviously because it *was*a fact — the plaintiff below was entitled to it, whether made in connection with an offer to compromise or not. “ Proposals made while a compromise is on the carpet do not bind, but conversations in which a fact is disclosed, may be admitted to prove it.” *Delogny*v. *Rentoul,*2 Mart. La. 175; Greenleaf’s Ev., sec. 192; 20 Johns. 576.

The admission of agents of a corporation stand upon the same footing with those of agents of individuals. Angelí *&*Ames on Corp., see. 309. If an agent, while transacting the business with which he is charged, and in connection -therewith, make any admission, it is the admission of his principal. Story on Agency, sec. 135.

Gilmore, J.

There are a number of questions presented in the bill of exceptions that fall within the assignments of error and which have been argued by counsel, but it is •deemed unnecessary to notice all of them.

There were objections by the defendant to the admission •of its resolution of March 20,1869, and a motion to exclude from the jury the testimony of Prank Wilhelm after it had been admitted; both the objection and motion were overruled, and the defendant excepted. These will be disposed •of together. If the resolution was competent evidence for any purpose of the trial, it was properly admitted. All the allegations of the petition were in issue, one of which was that the defendant at the time of the accident was “ and still is the owner and in control of the road.” The resolu-tion tended to prove this circumstantially, and was therefore properly admitted for this purpose. The resolution *564being silent as to the reason why the board assumed the payment of damages for injury to the buggy of McDargh, the testimony of Wilhelm, who was present at the meeting of the board at which the resolution was passed, was competent to show that McDargh’s claim, upon which the board acted, was for injury occasioned to his buggy by its being thrown into a hole in the defendant’s road on the 14th of March, 1869, while traveling in the buggy on the-road in company with the plaintiff. These extrinsic circumstances were properly introduced, in order that the resolution might be read in the light of them, and being admissible for this purpose the court properly overruled the-motion to exclude it from the jury. It does not follow, •however, that what the witness said of the company admitting its liability to McDargh for the injury to his buggy, is-to be construed as an implied admission of its liability to the plaintiff, or that the court would not have excluded that part of the testimony of this witness, if the motion had been confined to that particular point.

The important questions raised are these: Did the court err in admitting in evidence that portion, offered by the-plaintiff, of the minute entry of the board of directors, of September 13, 1869; or in refusing to exclude the entry after the defendant had introduced the remaining portion of it; or in refusing to instruct the jury as requested by the defendant in reference to it ?

The entry was a corporate act officially performed in relation to the plaintiff’s claim. The portion introduced by the plaintiff tended to prove, by implication, that the hole-into which she was capsized was within the bounds of the defendant’s road, and for this purpose it was properly admitted as an admission of the defendant. It is also elementary that the whole of the written entry containing this admission is to be received together, in order to enable-the court to judge of the true meaning and extent of the-admission, which, when taken together, may have a different import from that which a part might convey.

The court, therefore, properly permitted the defendant to-*565put in evidence that portion of the entry not read hy the plaintiff, in order that it might be read and construed as a whole. This put the entire entry before the jury as evidence, and the motion to exclude it was properly overruled.

But the court seems to have entertained the view, that because the defendant had put a portion of the entry in evidence, it had, as to that portion, and indeed the entire entry, precluded itself from asking and relieved the court from the duty of giving to the jury any instructions in reference to it, and when requested by the defendant to instruct the jury “that there is nothing in the minute entry of the date of September 13,1869, from which the jury can properly infer that the board of directors admitted the liability of the company,” the court refused to give the instructions, and said to the jury: “ The proposition of the plaintiff to compromise, and the action of the board thereon, having been introduced by the defendant, I will not now, at its request, attempt to dictate to you the use you shall make of this evidence.”

We think the defendant had not estopped itself from asking, nor exempted the court from giving to the jury, proper instructions as to this item of testimony by introducing it in the manner and for the purpose above mentioned. We further think that the instruction asked was proper and should have been given. The law favors the amicable settlement of controverted rights between parties, either before or pending litigation between them, and hence allows them to make *offers*or *propositions*to receive on the one hand, or to pay on the other, specified sums of money by way of compromise, without prejudice to either party, when it plainly appears that the propositions were in the nature of .peace ■offerings; and those under consideration seem to have been such. *An.offer*to pay a sum of money named under such circumstances, is not to be regarded as an admission that the sum named is due to the party to whom it is offered; but it is simply a *proposition,*which, when accepted, fixes the liability of the party offering to pay, but at the same time relieves him from the annoyance and danger of litiga*566tion, which is to be regarded as the consideration upon which the offer to compromise was made; and when this consideration fails, by reason of its non-acceptance by the party to whom the offer is made, the party making the offer is thereby relieved from all its consequences, and stands in reference to the controversy as though the offer had never been made. The propositions to compromise, as they appear in the entry, did not amount to an admission by the defendant of its ultimate liability to the plaintiff on the claim she-was urging. The instructions asked by the defendant should therefore have been given, and the refusal of the court to do so was calculated to prejudice the defendant’s-case. For this error the judgment will be reversed.

The testimony concerning the admission of August Fenner and Henry Waymire, who were directors, and appointed a committee to negotiate with the plaintiff, was admitted without objections on the part of the defendant; and although the court refused to give the instructions in regard to it, in the language of the request, which might properly have been done, they were substantially given in the instructions of the court to the jury, and the defendant was not therefore prejudiced in this respect. If, however, objections had been made to the introduction of’the testimony, the court could properly have refused to admit it until the plaintiff had shown by competent evidence that the parties named were authorized by the corporation to make the admissions.

Judgment reversed, and the cause remanded to the Superior Court of Montgomery county for a new trial.

McIlvaine, C. J., Welch, White, and Rex, JJ., concurred.