from that delay? If the rags has deen dry when delivered to the company, the damage would have been mil. The rags however were then damp, and hence their destruction. But the company did not know they were damp. It was the duty of the plaintiffs to inform the company at the time, if special care were required in dealing with the rags. The point was not raised in Iooper v. London and North Western Ry. Co., 50 L. J. (Q.B.) 103.

CAVE, J., concurred.

Rule refused.

M. MEYER, Appellant,

v.

VIRGINIA AND TRUCKEE R. R. Co., Respondent.

(16 Nevada Reports, 341. Oct. 1881.)

The declarations of an agent in charge of a station and warehouse belonging to the defendant, at the time the goods of plaintiffs and his assignors were burned therein, as to what occasioned the fire: Held, upon the facts stated in the opinion, inadmissible in evidence.

Where the record on appeal fails to show that an instruction was applicable to the evidence, the action of the court in refusing it will be sustained even if the reason given by the court for its refusal was not sufficient.

Instructions that are not pertinent to any issues in the case should be refused, although they embody correct propositions of law in the abstract.

Plaintiff complained of an instruction given by the court of its own motion Held, that even if it was erroneous it could have done no harm to plaintiff, because it was but a repetition, in substance, of one given at his request.

APPEAL from the District Court of the Third Judicial District, Lyon County.

Lewis & Deal, for Appellant:

B. C. Whitman, for Respondent.

LEONARD, C. J.-It is alleged in the complaint herein, that on the 13th of Sept., 1879, the plaintiff and other persons named were the owners of certain personal property of the value of two thousand six hundred and forty-nine dollars and eighty-five cents, which property was, on said day, stored by defendant in its warehouse, at the Mound House, on the line of its road; that the claims for damage of the other partics mentioned were, prior to the commencement of this action, for a valuable consideration paid by plaintiff, sold, assigned, transferred, and set over to plaintiff; that defendant's locomotives were so imperfectly constructed and so deficient in the usual and ordinary appliances used on locomotives

to prevent the escape of fire, sparks, and coals, and said locomotives were so carelessly run and managed by defendant's agents, servants, and employees, that said warehouse was fired and completely destroyed by fire carelessly and negligently dropped and thrown from said locomotives; and all said personal property in the complaint described was destroyed by said fire, whereby plaintiff and the other parties mentioned were damaged in the sum of two thousand six hundred and forty-nine dollars and eighty-five

cents.

Defendant answered and admitted that the warehouse and the said property of plaintiff and his assignors were destroyed by fire at the time and place alleged; but, among other things, denied all allegations charging imperfect construction of its engines and deficiency in the usual and ordinary appliances used thereon to prevent the escape of fire, sparks, and coals. It denied all allegations of carelessness or negligence in running or managing its engines, or that the fire was caused by any act or omission of it or any of its agents, employees, or servants; or that plaintiff, or any of his assignors, had been damaged in any sum by reason of any carelessness or negligence of the defendant or any of its agents, servants, or employees. The verdict and judgment were for the defendant. This appeal is taken from an order overruling a motion for new trial and from the judgment.

1. It is urged by appellant that the court erred in refusing to allow witness Burnett to answer the following question, asked for the purpose of showing that defendant's engines fired the warehouse, viz.: "At the time the building was burning, did you make any statement to J. R. Shaw as to what occasioned the fire? If so, what was that statement? Shaw was one of the owners of goods burned, and one of plaintiff's assignors, and he was also asked to state whether or not Burnett told him, at the time the building was burning, what occasioned the fire, and, if so, what that statement was. The court refused to permit the witness to answer, and its action in respect to these questions presents an important subject for our consideration. No part of the evidence admitted is set out in the transcript. It is only shown that, at the trial, "each party introduced evidence tending to establish the issues raised by the pleadings;" and it is agreed that, at the time of the fire, Burnett was defendant's agent, having charge of the station and the warehouse burned. In its order overruling the motion for a new trial, the court said: "Burnett's agency was confined to the charge of the station and warehouse; he had no charge over the engines, or any authority to run or manage them. His business, as station and warehouse agent, had no connection with the construction or the management of the engines." There can be no serious difference of opinion in relation to the law of evidence touching the

question in hand, but it is oftentimes difficult to apply the law to the facts presented.

Mr. Justice Story thus states the general principle: "Where the acts of the agent will bind the principal, there his representations, declarations, and admissions respecting the subject-matter will also bind him, if made at the same time, and constituting a part of the res gestæ." (Story on Agency, sec. 134.)

And in Enos v. Tuttle, 3 Conn. 250, which has since been followed in the same state, and been recognized as sound law by other courts, it said that declarations to become a part of the res gestæ, must have been made at the time of the act done which they are supposed to characterize, and have been well calculated to unfold the nature and quality of the facts they were intended to explain, and so to harmonize with them as obviously to constitute one transaction.

In Franklin Bank v. Navigation Co., 11 G. & J. 33, the court said: "In general, declarations or statements by third persons are inadmissible; that, however, is not the universal principle, and does not apply to the authorized declarations or representations of an agent. The rule springing from the relation of principal and agent being that the representations or declarations of an agent made in the course of and accompanying the transaction which is the subject of inquiry, and, acting within the scope and limits of his authority, may be proved. But it does not extend to declarations or statements made after the transaction, though in relation to it; and the principle upon which the declarations or representations of an agent within the scope of his authority, are permitted to be proved is that, such declarations, as well as his acts, are considered and treated as the declarations of his principal. Whatsoever is so done by an agent is done by the principal through him as his mere instrument. So, whatsoever is said by an agent, either in the making a contract for his principal, or at the time and accompanying the performance of an act within the scope of his authority, having relation to, and connected with, and in the course of, the particular contract or transaction in which he is then engaged, is, in legal effect, said by his principal, and admissible in evidence; not merely because it is the declaration or admission of an agent, but on the ground that, being made at the time of, and accompanying, the contract or transaction, it is treated as the declaration or admission of the principal, constituting a part of the res gestæ, a part of the contract or transaction, and as binding upon him as if in fact made by himself. But declarations or admissions by an agent, of his own authority, and not accompanying . . . the doing of an act in behalf of his principal, nor made at the time he is engaged in the transaction to which they refer, are not binding upon the principal, not being a part of the res gestæ, and are not admissible in evidence, but come within the

general rule of law excluding hearsay evidence; being but an account or statement by an agent of what has passed or been done or omitted to be done; not a part of the transaction, but only statements or admissions respecting it, and if they relate to anything resting within his knowledge material to either party, it must be proved by his testimony, and not by evidence of his mere assertion, which is no proof of it."

From the great number of cases bearing upon this question, but presenting different facts, we refer to the following, which estab lished the rule as stated above: Fairlie v. Hastings, 10 Ves. Jun. 125; Kirkstall Brewery Co. v. Furness Railway Co., 9 Law Rep. Q. B. Cas. 470; Haynes v. Rutter, 24 Pick. 245; Ashmore v. Penn. S. T. & T. Co., 38 N. J. L. 14; Byers v. Fowler, 14 Ark. 105; Penn. Railroad Co. v. Brooks, 57 Pa. St. 343; Magill v. Kauffman, 4 S. & R. 320; Franklin Bank v. Cooper, 39 Me. 555; Luby v. Hudson River R. Co., 17 N. Y. 131; Runk v. Ten Eyck, 24 N. J. L. 760; Gerke v. Cal. Nav. Co., 9 Cal. 256; Bradford v. Haggerthy, 11 Ala. 701; Verny v. The B. C. R. & M. R. Co., 47 Iowa, 551; Thallhimer v. Brinkerhoff, 4 Wend. 398; Bank of the Northern Liberties v. Davis, 6 W. & S. 289; Pemigewassett Bank v. Rogers, 18 N. H. 261; Maury v. Talmadge, 2 McLean, 159.

It remains to apply the law to the facts as they are presented. There were two important facts which plaintiff was bound to prove in order to recover. First, that the fire was caused by sparks or coals from the defendant's engines; and second, that their escape from the engines was due to the imperfect construction of the latter, or the careless or negligent management of the same. These were independent, vital issues. The station agent's duties had no connection with either; that is to say, as to the origin of the fire or the negligence charged, he was not the inculpated agent, and no negligence is alleged against the defendant by reason of his failure to use all means in his power to save the goods. The interval of time that elapsed between the escape of the sparks or coals from the engines, and the making of the statement, is not shown. It seems, however, from the form of the question, that it was while the building was burning. The goods may have been destroyed at the time, and, consequently, the entire injury to owners may have been complete when it was made. It may be, therefore, that in any view, the declaration was a mere narration of a past transaction, and that for this reason alone, according to all the authorities, it was inadmissible. But whether it was so or not, a question we do not decide, our opinion and conclusion will be based upon other facts.

For many reasons we are satisfied that Burnett's declaration was inadmissible. Under the circumstances shown any declaration by him as to the origin of the fire could not have been competent testimony, although the fact of burning, if that had been in issue,

under certain circumstances, might have been proven by the agent's declaration. Under possible conditions a statement by the agent of the fact of burning might have been within the line of his duty, but in the absence of special authority it could not have been any part of his duty, or in his power, to explain how the fire originated. It was Burnett's duty to deliver the goods when they were called for; and if Shaw had not known that they had been burned, or were in such condition that they could not be delivered, and had demanded them, or made inquiries in relation to them which rendered it necessary for Burnett to deliver them, or upon failure to do so, to give a reason for his failure, then any statement as to the cause of the failure, necessary to explain the same, would have been admissible; but the only necessary explanation would have been to the effect that they had been burned. Any statement beyond that fact would not have been required in order that the agent might perform his entire duty to Shaw; and not having been engaged in the performance of any act or duty within the scope of his authority, at the time, he had no implied power to make any statement which the defendant was under no obligation to make.

Any inquiry as to the origin of the fire was of no consequence to Shaw, except as a means of proving one of the essential facts in this case in order to bind the defendant-a fact which the latter was in no manner bound to furnish. A statement as to the origin of the fire did not assist Shaw in obtaining the goods, and it was of no possible benefit, except as a means of establishing defendant's liability as above stated. It was, then, a declaration voluntarily made by Burnett. It was outside of his duty as agent and beyond the scope of his authority. If he had authority to state how the fire originated, under the circumstances shown, he had power, also, to declare that the engines were carelessly managed or improperly constructed. Such declarations would not have been necessary for the proper discharge of his duties to Shaw, and he had no implied authority to make them, and thereby bind the defendant.

This is, perhaps, a sufficient answer to appellant's claim of error upon this point, but there are others, some of which we proceed

to state.

It is not shown that Burnett at the time the declaration was made was engaged in the performance of any act or duty imposed upon him by his employment, or that it was made in pursuance of any duty as agent. True, he was agent, and as such had charge of the station and warehouse; but for aught that appears, he was doing nothing as agent, either within or without the line of his duty. He and Shaw may have been standing idly by, or sitting down at a safe distance from the scene of conflagration. The statement may have been a casual remark made by the agent of his own motion, or it may have been made in reply to a question asked by