#### BARILDA ROYAL v. OBADIAH SPRINKLE.

To make the acts and declarations of a person evidence against a party, upon the groimd of his being an agent, such agency must be established by evidence, independent of such acts and declarations.

Actioh of Trover for a wagon, tried before his Honor Judge Caldwell, at the Spring Term, 1853, of Wilkes Superior Court.

It appeared on the trial, that the plaintiff and defendant had some understanding about the ironing of a wagon for a certain quantity of bacon, and that the wagon and bacon were taken to the defendant’s smith shop, where the bacon was weighed and put into the defendant’s possession; that some disagreement took place between the parties in relation to the work, and thereupon the wagon was taken home by the plaintiff, and the bacon left. A warrant was brought by plaintiff for the bacon, a judgment rendered, and an appeal prayed by defendant; but, before the same was carried to Court, one Sturdevant went to the house of the plaintiff, taking with him the cart and oxfen of defendant, and told plaintiff that Obadiah said, if he would send, over the wagon, it should be ironed for the bacon. This testimony was objected to, but received by the Court, for which defendant excepted. The wagon was ironed, but refused to be delivered on demand, upon the ground, as defendant contended, that she was first to deliver him the judgment for the bacon. There was much other evidence in the case, but it is not material to be stated, as the only question raised for the determina*506tion of tbis Court, was, whether any sufficient agency had been established as to Sturdevant, so as to render his declarations admissible.

Verdict for plaintiff; motion for a new trial, for the matte* excepted to ; motion overruled ; judgment and appeal.

*Mitchell,*for plaintiff.

*Boyden*and *II. 0. Jones,*for defendant.

Nash, C. J.

The case states, that the only question referred to this Court is, whether there was evidence of the agency of one Sturdevant, so as to admit his declarations. The controversy between the parties is as to the title of a wagon for the alleged coversion of which the action is brought. The witness Sturdevant was a workman in the shop of the defendant, and Came to the house of the plaintiff, driving an ox-cart belonging to the defendant, and delivered to her the message stated in the case. The reception of this testimony was opposed by the defendant, but received by the Court, upon the ground that.there was evidence that, as Sturdevant acted as the agent of the defendant, what he stated or did within the scope of his authority, and in the course of its execution, bound his principal. But, to have this effect, and to make his act or declaration evidence, it must be proved by proper evidence, independent of such act or declarations, that he was the agent of him, he professes to represent. If it were not so, any man might be bound to a contract to which he never had assented, by the acts and declarations of a person he never had authorized to act for him. Williams v. Williams, 6 Ired. Rep. 283; Monroe v. Stutts, 9 Ired. Rep. 49. The evidence set forth in the exception does not show any agency whatever, and we are at a loss to see, under the rule, as to the proof of agency, upon what circumstance or testimony the opinion was founded. We are compelled to declare there was no such evidence, and that there is error.

Judgment reversed, and a *venire de novo*awarded.