#### STENHOUSE, McCAULEY & CO. v. CHARLOTTE, COLUMBIA & AUGUSTA RAILROAD COMPANY.

Evidence of what an agent said in regard to a transaction already passed, blit while Ms agency for similar objects still continued, is not admissible to proye the contract itself, although it is competent to contradict the statement of the agent that no such contract was made.

If such evidence is, after objection, received generally, without confining it to the contradiction of the statement of the agent, it is error, and entitles the party objecting to its reception to a new trial.

(-v. *The N. 0. Railroad Oo.,*at this term, cited and approved.)

Civil aotioN, upon an alleged contract to transport cotton, tried before his Honor, Moore, </., at the (Special) July Term,, 1873, of the Superior Court of MecKLENBuro county.

One of the plaintiffs testified, that in September, 1870, he made a contract with one *W. W.*Pegram, who was then acting as the local agent of defendant at the depot, in Charlotte, for the reception and transportation of cotton at that place for New York, at the rate of $2.78 *per*bale from Charlotte *via*Charleston to New York, from that time to the 1st of January, 1871. The plaintiffs were cotton buyers and¡in pursuance of the contract delivered to defendants 592 bales of cotton, which were shipped at that rate. That on the 11th October, plaintiffs were notified by said agent that the defendants refused to carry any more at that rate, and claimed the right to do so because no such alleged contract had been made. That plaintiffs offered to deliver cotton to defendants after the refusal, for shipment to New York, and were ready to fulfill the contract on their part, but defendants refused to receive and ship the same. That from the 11th of October, 1870, to the 1st of January, 1871, plaintiffs bought and shipped to New York over other railroad routes 3,528 bales of cotton, 611 of which they had to pay at the rate of $3.50 *per*bale.

Pegram, the agent, testified that he made no such contract as above stated, and had no authority as agent to make any *543such contract, as testified to by the plaintiff- that on the 2Sth of September, 1870, he showed one of the plaintiffs a telegraphic dispatch, of which the following is a copy, viz :

CHARLESTON, Sept. 28th, 1870,

*W. W. Pegram:*We will maintain those rates until January 1st, unless you can do better.

E. H. BARNWELL.

That on the 27th of said month,, the witness had telegraphed to said Barnwell to know if the railroad and the shipping line from Charleston to New York would co-operate with defendants in conveying cotton from Charlotte to New York for $3 per bale; that he informed the plaintiff of the contents of both dispatches, and offered to contract with him for the carry, ing of his cotton upon those terms, which proposal he refused to accept. That the only authority he had to make any contract for the carrying of cotton to New York, was what was contained in said telegram and certain letters, (which, as the ease was decided on another point,) are unnecessary to set out. This witness, Pegram, further stated, that in or about the early part of September, 1870, the defendant had carried some cotton for plaintiffs faom Charlotte to New York, *via*Charleston, at §2,75 *per*bale.

0. IT. Elms stated that on some occasion, when, he could not say, he was at the depot when one of the plaintiffs, Mr. McCauley, had a conversation with the witness, Pegram, and offered to ship a lot of cotton over the defendant’s road according to a contract wherein he alleged he had for its shipment over defendant’s road with Pegram. This witness was unable to state what the contract was. Defendants excepted to this testimony ; it was ruled competent by the Court.

One Wilson McComb, a colored man, testified that he was in the employment of the plaintiffs, and marked and prepared their cotton for shipping; that on one occasion he heard Pegram say, that he had made a contract for the shipping of *544plaintiffs cotton, which would relieve him of the trouble of tracking the cotton on the platform. When this conversation occurred, he could not say.

His Honor was asked by the defendant to charge, that Pegram,, as a mere local agent, had no authority to make such a contract as stated by McCauley, one of the plaintiffs. That the jury must decide the question, as to whether there was such a contract by examining and conciliating all the testimony in the ease. That the testimony of McComb as to the declaration of Pegram, could only be used as a means of testing the truth of Pegram’s statement," and that if the jury believed that Pegram had given a correct account of the matter of his arrangement with the plaintiffs, they could not recover.

His Honor charged that Pegram had a right to make the contract, testified to by McCombs, and as *to*the other prayer of defendant, the Court did not respond to if.

The jury returned a verdict for the plaintiffs. Rule for a new trial granted and discharged. Judgment in accordance with the verdict, and appeal by the defendant.

(The plaintiffs hied an amended statement of the case in some particulars, which not being pertinent to the point decided, is omitted.)

*Wilson (&*Son, and *R. Barringer,*for appellant.

Guión, contra.

Ejsade, J.

The plaintiff alleges that he made a contract with the defendant, through his agent, Pegram, to transport his cotton to market at a given price, and that the defendant failed to comply with the contract, by reason of which plaintiff was injured, &c. The defendant denied that Pegram was authorized to contract, or that he did in fact contract.

The power in Pegram to contract seems to be clear. He was the local agent at the depot from which the plaintiff’s cotton was to be shipped, and was in the habit of making contracts for transportation with the plaintiff and others, and the *545telegrams, which are a part of the ease, show that he was authorized to contract. We agree with his Honor in that.

Plaintiff swore upon the trial that he did make the alleged contract with Pegram. Pegram, for the defendant, swore that he did not. The plaintiff then introduced two witnesses, McCombs and Elms, who testified that after the contract was alleged to have been made, they heard Pegram say that he had made a contract with plaintiff. The testimony of McCombs and Elms was clearly competent to contradict and discredit Pe-gram, bujj it was not competent for the purpose of proving the contract. And yet it was introduced generally. The defendant could not object to the competency of the declarations off. Pegram, because they were competent to discredit him, but-the defendant had the right to have the jury instructed, thatr while the declarations of Pegram, as proved by McCombs, were competent to discredit him, yet they were not competent to prove the contract. And the defendant asked for this instruction and his Honor refused to give it. In 1 Green. Ev. sec. 113, note 2 on page 134, it is-said, that “whether the declaration or admission of the agent made in regard to a transaction already passed, but while his agency for similar objects still continues, will bind the principal, does not appear to have been expressly decided, but the weight of authority is in the negative.” Numerous cases are cited. That is our case. We have decided the same question in the same way at this term, in the case of *v. N. C. R. R. Co*.

There is error.

Per Curiam. ' - *’Venire de novo..*