Insurance Co. v. Tobin.

and that you thought it would be a five thousand dollars. job to you?'

A. No, sir; for I supposed Captain Goddin to be one of the owners of the boat; I never supposed they had any trouble until a later day."

Captain Goddin in answer to Q. 34, says he did have a conversation with A. D. Hopkins, such as is mentioned in the above question put to Hopkins at the time and place named. We think the question and answer of Goddin competent, as reflecting upon the credibility of Hopkins'

statement.

The exception to Q. 7, and answer in the testimony of J. V. Richardson; to Q. 2, and answer in the re-examination of the witness Joseph Williams, and to Q. 2, and answer in the testimony of F. A. Blank, were well taken.

III. We now come to consider the objections made by plaintiff below to testimony offered by defendants below, and excluded.

1. At Donaldsonville, the Wade IIampton and Lizzie Hopkins were laying near each other. At that landing, Captain Goddin, from some cause satisfactory to himself, had come to the conclusion the safety of the Hampton required the removal of a portion of her cargo. Acting with that purpose and necessity in view, he went to the steamboat Lizzie Hopkins to get permission to ship a portion of the Hampton's cargo on board the Hopkins.

Captain Goddin was the accredited agent of the owners of the Hampton, charged, in this emergency, with the duty of acting and speaking for them. What he did and said in the discharge of his duty, while the danger to the vessel was upon her and calling for immediate action, with a view of saving her, were as much the acts and statements of her owners, and should have the same force and effect, as if the owners had been present in person and dictated his words, or spoken in their proper person.

Was the matter objected to competent testimony? When Captain Goddin reached the Hopkins, he asked the witness, Henry Rod, for the captain, who was absent.

Insurance Co. v. Tobin.

Rod is then interrogated as to what took place between himself and Goddin. The answer is lengthy, and we will quote so much as will show the quality of the rejected testimony:

"Q. 11. What did he say then?

A. He stepped up out of the yawl-boat, and told me that he was in a leaking condition or sinking condition, and told me that he was heavily loaded, that he had some new outriggers put in, and some were not caulked, and asked for the head clerk, Mr. P. A. Charlet; he told me he knew the gentleman, or something like that; I did not pay much attention, as I had to watch the bank, and to watch the boat, as the wind was blowing; then he told me he would like us to take some of the cotton off his boat, and bring it to New Orleans, if we could take it off; I answered him that I had nothing to do with it, but would call the mate; when I told him about my power, he told me then to call the mate."

The nature of Goddin's employment, and necessities of his position, made him the agent and representative of the owners of the boat. The Manchester, 8 Eng. Adm. 62. As such, his acts and statements, within the scope of his employment, are to be treated as res gesta. Story on Agency, § 134. Where the acts of the agent would be but dumb show, but for a meaning put into and upon them by his words, his words are to be treated as verbal acts, and, whilst speaking clearly within the bounds of his employment and authority, are res gesta. Hence the rule "that declarations of third persons are not admissible in evidence, as part of the res gestæ, unless they in some way characterize or tend to give character to the act which they accompany, or derive a degree of credit from the act itself." 14 N. H. 101; 1 Greenleaf, § 440.

When the statements of Goddin, objected to, were made, he was acting clearly within the scope of his authority as master of the Hampton. He was in search of a specific help to lighten his boat, by removing on board the Hopkins a portion of his cargo. He acted in the belief

Insurance Co. v. Tobin.

that to remove a portion of the cargo would raise the Hampton in the water, and thus escape the danger from the leak. His acts in going to solicit such aid from the Hopkins would have been meaningless, without his statements to give character to the act. His acts and words must go in as a whole, that his conduct on that occasion may have meaning. He was not narrating a past transaction, but stating a present need, induced by a pending danger, with what he then probably thought to be the cause of his wanting the present aid.

His conduct and words concerned the safety of the vessel, care for the cargo, and possibly the lives of the passengers. Considering the duties of the captain of the Wade Hampton, his obligations and authority, we have no doubt as to the competency of acts done and words spoken by him while on the Hopkins. This application of the doctrine of res gesta is supported by the authorities. 1 Ohio St. 26; 1 Greenleaf, § 113; Story on Agency §§ 134, 135; 4 Cush. 93; 34 Barb. 256; 6 Barb. 79; 4 Seld. 497; 12 Wheat. 460.

The following answer is objectionable, because it does not give the conversation between Captain Goddin and Mr. Charlet. What was said by Goddin does not appear with any certainty.

"Q. What happened next?

A. I told Mr. Charlet that the captain of the R. E. Lee wanted to see him; then Mr. Charlet got up and came outside of his stateroom, and got speaking with Captain Goddin; then I stepped aside and heard him speaking about riggers, and about something else; then I went below, and that's all I know about it; and I told the gentleman 'that was all I could do for him.'

999

2. The court erred in sustaining the objection to questions Nos. 49 and 53, put to Geo. M. Fredrick; also in excluding question and answer No. 19, in the testimony of P. A. Charlet; but ruled correctly in excluding questions Nos. 26, 29, and 30, in the testimony of McHaffie.

Other objections to the admission or exclusion of testi

Hoyt et al. v. Day.

mony were made by each party. We think, from our examination, they are not of sufficient importance to require special notice. They are either not valid ones, or the testimony is of that unimportant description which frequently gets into a case, but can have no appreciable influence either way on the jury, as to the merits of the case.

We have endeavored to deal with the testimony, exceptions, and objections in such a manner that our views may afford a general guide upon like questions, in the further investigation of the case.

Judgment reversed, and cause remanded for a new trial.

HOYT ET AL. v. Day.

1. A testator, whose estate consisted of a single tract of land, occupied as a homestead, and some personal property, devised and bequeathed to his wife one-half of all his real and personal estate, and the other half to his brothers and sisters, and the children of a deceased sister naming each, and specifying the proportion or share of each. He appointed an executor, and authorized and empowered him to sell and convey "all said real estate to the purchaser or purchasers thereof, if necessary for the purpose of distributing" it "among the devisees and legatees aforesaid." Held, that this was a devise in fee, to each of the devisees by name, of an undivided estate in land, in the proportions specified, and not a bequest of the proceeds of said land.

2. That the power of sale vested in the executor was a naked power only, not a power coupled with an interest in the land, and could only be exercised, if necessary, for the purpose of making distribution among the devisees.

3. Each of said devisees holds his share as a tenant in common with the others, and is entitled to all the rights of such tenancy, subject only to the power of sale.

4. The power of sale was not absolute. It could only be exercised, if necessary, for the purposes of distributing the estate. Its exercise must be limited to the purposes for which it was granted.

5. A devisee may sell and convey his undivided share as real estate before distribution, but the purchaser takes the same subject to this power of sale, the same as his grantor, if its exercise becomes necessary.

Hoyt et al. v. Day.

6. The devisees, or their grantees, have each the right to hold his share in severalty, if the same can be set off without manifest injury to the others; but if distribution can not be made in land, and it becomes necessary to sell, to make a proper division, then the executor is authorized to sell the whole, notwithstanding a prior conveyance of an undivided interest by one of the devisees.

7. By proceedings in partition, the widow had her half assigned to her in land. Held, that the power of sale was not thereby defeated as to the other half, if the necessity existed for a sale, to make distribution among the other devisees.

8. The defendant acquired title to an undivided share, by purchase of a devisee; the plaintiffs afterward purchased and received a deed for the whole, including defendant's share, from the executor. The plaintiffs can not maintain their title to the share of defendant, unless the neces sity existed for a sale of the whole; and a court of equity will not enjoin proceedings in partition to have such share set off in land, unless it appears that such share can not be so set off, without manifest injury to the interests of his co-tenants.

ERROR to the District Court of Huron county.

This is an action in equity, by the plaintiffs in error to quiet their title to some eighty-six acres of land.

On appeal to the district court, the petition was dismissed after full hearing upon the evidence; a bill of exceptions was duly taken, and error is here prosecuted to reverse that judgment on the ground that it is contrary to the law and the evidence.

The plaintiffs aver, that they have the legal title to, and are in peaceful possession of, said land, and that the defendant Day, claims to be the owner in fee of one undivided one fifteenth of the same, and has commenced proceedings in partition, under the statute to have his share set off to him.

It is also averred that such proceedings in partition are wholly inadequate to the determination of their rights in the premises; and that Day can not maintain the same, because he has no interest in this land, and has no po-session thereof, either jointly with the plaintiffs or otherwise.

The plaintiffs pray, that said proceedings in partition be ordered to stand for hearing with this suit, and that said Day be enjoined therein, until the hearing of this case, and upon final hearing, his title be declared null and void.