#### The New York Slate Company *versus*Peter Osgood and Another.

One who had sold goods as the agent of another upon a *del credere*commission, is not a competent witness in an action brought by the principal against the purchaser for the price of the goods sold.

Assumpsit for a quantity of slates sold by the plaintiffs to the defendants.

At the trial of the cause on the general issue before *Parker,*J., at the last November term in this county, it was agreed [ * 61 ] * that the plaintiffs were duly incorporated, and that *Joseph Eckley*and *David J. Eckley,*of *Boston,*are the agents of the said company, appointed under its corporate seal, to sell for said company on a *del credere*commission of seven and a half per cent. The slates, for the price of which this action was brought, were sold to the defendants by the said *Eckleys,*who delivered them a bill of parcels in their own names. The defendants afterwards made a payment of 200 dollars, for which the said *63agents gave a receipt in their own names. There was in the case a release executed by *Joseph Newton,*styling himself sole agent and treasurer of said company, and to which the seal of the company was affixed, discharging the *Eclcleys*from all demands of the company on account of the slates sold to the defendants, assigning as the reason, that the *Eckleys*were material witnesses in the present action, and to qualify them to give evidence therein. There was also a letter of attorney from the company to the *Eckleys,*verified in the same manner, authorizing them to prosecute this suit in the name of the company.

The plaintiffs offered the said *Joseph Eckley*as a witness, to prove the sale and delivery of the slates to the defendants, whose counsel objected to his admission as a witness on the ground of interest, which he offered to prove by the deposition of *Luther Bradish.*The plaintiffs’ counsel objected to the admission of said deposition. The judge rejected the evidence of *Eckley*on the ground of interest, as appearing in said deposition.

. The deposition states, among other things, that *Newton*is well known as a principal proprietor and general agent of the company; and that, in conversation with the witness, *Newton*told him that' the *Eckleys*had fully paid and satisfied the company for the slates sold to the defendants, that the company had no interest or concern ii the present action, or the moneys that might be recovered therein, but that the same were wholly the concern and interest of the *Eckleys.*

* If the said *Joseph Eckley’s*evidence was rightly re- [ * 62 ] jected, and said deposition rightly admitted, the verdict-found for the defendants was to stand, and judgment be rendered accordingly; otherwise the verdict was to be set aside, and a new trial granted.

*Selfridge,*for the plaintiffs.

Corporations can speak and act only under their corporate seal. To admit the loose conversations and declarations of individual members of the corporation to counteract the solemn acts and intentions of the body corporate, is at once to disfranchise them. Such a principle greatly endangers the right and interests of all aggregate corporations. Indeed, there is nothing in the case to show that *Newton*was, at the time of his conversation with the witness, either a member of the company or its agent. But if this evidence was rightly admitted, it does not follow that *Eckley*was an incompetent witness. The facts stated by *Newton,*in his conversation with the witness, may all be true, and his legal inferences all false. The better course would have been to put Mr. *Eckley*on his *voir dire.*His declarations upon oath would have been better evidence than the mere loose recollections and observa *64tians of one not under oath. He could have satisfied the Court that he was disinterested. (1)

*Welsh*for the defendants.

(1)

1 *Mass. Rep.*159, *Monumoi*vs. Rogers.—3 *Mass. Rep.*364, *Gray*vs. *Portland Bank.*— 1 *Cranch,*332, *Ins. Co. of Alexandria*vs. *Young.*— 2 *Cranch,*127, *Head § Al.*vs. *Prov. Ins.*Co.—5 *Cranch,*61, *Bank of U. S.*vs. *Deveaux & Al.*

*Per Curiam.*

The question of the admissibility of Mr. *Echley,*as a witness in support of this action, seems to be decided by the facts agreed by the parties. It is stated that *J. 8f D. J. Eclcley*were the agents of the plaintiffs, duly constituted by them, to sell their goods on a *del credere*commission; that is, the agents were liable to their principals for the amount of their sales, deducting their commissions. Supposing Mr. *E.*so to testify, he must prove himself directly interested in the event of the suit. The action must, on any supposition, be carried on for the benefit of the agents, either for their immediate profit in the commissions, or to secure them upon their responsibility to their employers. [ * 63 ] This being the case, a release from the nominal * plaintiffs had no effect to render the witness competent; because he was still to swear at large in his own concern, and establish a bargain made, not only in his own name, but for himself.

This case is plainly to be distinguished from the case of a servant or immediate agent, acting without any unusual responsibility. The privity of contract, the confidence in the dealing brought in question in this action, was between the Mr. *Eclcley*offered as a witness and the defendants. Mr. *E.*was answerable to his employers for the property sold, whether recovered of the defendants or not; and he was to receive an advantage from the price, as an owner, although in part only.

The case is stronger if we admit the confession of the principal member and agent of the corporation, who are plaintiffs in this action, and consider the facts stated by him as proved against the company. In that case, the money demanded in the action is to be recovered for the *Eckleys.*They are the real plaintiffs, and only using the name of the corporation, for whom they are to be sworn. It is a clear case of direct interest in the event of the suit, *(a)*

*Judgment on the verdict.*

(a)

*Marland*vs. *Jefferson & Al.*2 *Pick.*240.