Jenks v. Burr

Citations

• 56 Ill. 450

Syllabus

<p>1. Evidence—deüa/ratione of an agent. Before the declarations of an agent can ever be admitted as evidence, it must appear that, at the very time of making them, he was transacting or doing something about the business of his principal, so that his acts and declarations become and form, of themselves, a part of the Tee gestm. Under such circumstances the acts and declarations of the agent may be proved, as any other affirmative fact in the case, but not otherwise.</p> <p>2. If a fact rests in the knowledge of the agent, which is material to the issues between the parties, the party desiring such testimony must call the agent himself as a witness.</p> <p>3. A being indebted to B, there being a controversy as to the amount actually due, offered the sum of $300 in full satisfaction of the debt, which B refused to accept on those terms, but was willing to receive it and credit the same on their general account. Thereupon A informed B that he would deposit $300 in bank where he could get the same whenever he concluded to take it in full payment and discharge of his entire claim, which he soon afterward did, in accordance with his proposition, subject to the order of B, who drew the money out of the bank to his own use: Held, in an action by B against A, to recover the balance of his claim, on the question whether he received the money in full discharge and satisfaction thereof, or whether he received it only as a partial payment on his account, that the testimony of the plaintiff as to a conversation he had with the banker, on the street, before he drew the money, in substance that, on asking the banker whether the money had been deposited to his credit, he replied it had, and in answer to the question whether there were any conditions attached to it, that there were not, -was inadmissible. Admitting the banker was the agent of the defendant for the purpose of paying out the money, still his declarations at the time specified, and under the circumstances, were inadmis