#### McCOMB and WALLACE, Adm’rs. v. THE N. C. RAILROAD COMPANY.

'What an agent says or does, within the scope of his agency, and while engaged in the very business, is evidence for or against his principal. His declarations made subsequently as to what he had done, is not •evidence, though he may continue still to act as agent generally, or in •other matters.

*(Smith & Melton*v. *Rf. 0. Railroad Co.,*68 N. C. Rep. 101, cited and approved.)

Civil aotioN, (commenced in the Court of Pleas and Quarter Sessions, 1857,) tried before *Moore, J.,*at the July (Special) Term, 1873, of the Superior'Court of MeckleNbubg county.

The suit was originally commenced by one Farrow, the in-féstate of the plaintiffs against the defendant as a warehouse*179man, declaring on a special contract to keep and deliver to plaintiffs order on demand, four bales of cotton, and for a failure to deliver said cotton, also declaring in the common counts. Defendant pleaded *“*Gen. issue.”

Eor the plaintiff, Dr. Gilmer testified, that in December, 1856, he shipped on the road of the defendant, to his own order four bales of cotton to Charlotte; that he sold this cotton to plaintiffs’ intestate by sample ; that a clerk of said intestate and himself went to the depot of the defendant and found the cotton in the depot building; that they weighed it on the scales of the defendant.in the depot and left the cotton on the scales. The plaintiffs’ intestate was a buyer and shipper of cotton to South Carolina.

A. H. Martin, for plaintiff, testified, that in December, 1856, he was agent of the Charlotte and South Carolina Railroad Company at Charlotte, and extending from thence to Columbia, S. C.; that a man named Powe was the station agent of the defendant at Charlotte.

Plaintiff proposed to prove by this witness the declarations of Powe, made three or four days after the cotton in qnestion was weighed and left at the depot, in a conversation that occurred when the cotton was first demanded. This was objected by defendant, but received by the Court. Defendant excepted.

The witness then further testified, that three or four days after the cotton was weighed and left at the depot, the plaintiffs’ intestate, in the presence of the witness, asked Powe what he had done with the cotton ? To which he replied, “T turned it over to the Charlotte and South Carolina Railroad Company.” Witness then said, “ Yon did not turn it over to me,” and asked what evidence he had? He replied that he turned it over to one of the loading clerks of the Charlotte and South Carolina Railroad Company; that he had no receipt. This was all the evidence.

The reply of this witness to Powe, denying that the cotton had been turned over to him, was objected to by defendant and admitted by the Court. Defendant again excepted.

*180The defendant requested in writing, the Court to give the jury the following instructions:

1. That there is no evidence that the defendant had the cotton as warehouseman for the plaintiffs’ intestate, or as a bailee, and that the plaintiffs cannot recover.

2. There is no evidence that said intestate lost any of the Gilmer cotton.

The instructions were refused by his Honor, who charged the jury as to the different degrees of care to be taken in mat ters of bailment, to which there were no exceptions.- He further instructed the jury, that the defendant could only be held liable, from the evidence, as a warehouseman. That the declarations of Powe were evidence that the defendant held the cotton for the plaintiffs’ *intestate;*and that if the jury should find that when Powe found the cotton on the scales, he assented to hold the cotton for Farrow, the said intestate, there would be ground to charge the defendant as a warehouseman.

Defendant excepted to this charge, and for refusal to give the instructions prayed for.

The jury returned a verdict for the plaintiffs. Rule for a new trial; rule discharged. Judgment and appeal by the defendant.

*Barringer*and *MoOorMe &*Bailey, for appellant.

*J. R.*Wilson, contra.

Reade, J.

What an agent says or does within the scope of his agency, and while engaged in the very business, is evidence for or against his principal as part of the *res gestee.*

But evidence of his declarations, made subsequently, as to what he *had done,*is inadmissible. It is only hearsay. And this although he may continue to act as agent in other matters, or generally. *Smith Melton*v. *N. C. R. R. Co.,*68 N. C. Rep. 107. That is decisive of this case.

If the plaintiff left the cotton on storage with the defendant, *181and the defendant failed to deliver it on, demand, he is *prima facie*liable. If it was lost or destroyed, then the question of negligence arises. Rut that is not now before ns.

There is error.

Pee Cubiam. *Venire de*nmo.