the demurrer had been filed here it would have presented a mere question of pleading upon which this court could have ruled as the state court would have done. But when a case comes on for trial in this court it depends not merely upon the laws of the state ofMinnesota in matters of evidence, the taking of depositions, and things of that kind affecting the trial; the parties do not depend aione upon the state law, but either can avail himself of every law and of every right which is given by the federal statutes, or is recognized in the federal courts. So that, whatever might have been the ruling of the state court, if the case had remained there, this court treats the pleadings as if it had been originally commenced here.. Either party has the right to insist that the construction of that pleadin/!:, and the rules which control the trial and the enforcement of the judgment, shall be such as are guarantied to him by, and recognized and practiced io, the federal courts. So Hiat objection is not tenable. But beyond all this there is another question. Motions f01" new trials in common-law cases in the federal courts are not matters of right; they are appeals to the discretion of the court. No error lies to the granting or refusing a motion for a new trial. Thil? case was tried upon the theory that there was a statute giving the right of survival, and, as a matter of fact, there is such a statute.' As far as any questions of liability under such a statute are concerned, they have been determined by the jury, and approved by the trial judge, and nothing is left but this single question. Now, when a case is tried upon the theory that there is a statute giving a right, and there is in fact such a statute, substantial justice forbids that the verdict shall be set aside simply because there has been .no formal averment of the existence of such a statute. Neither party was misled; each party tried the case upon the theory that there was such a statute, and upon such theory the plaintiff is shown to be entitled to a verdict. It would be subordinating substance to form, and justice to mere technicalities, to say that because there was no formal averment of such a statute the court must set aside the judgment and order a new trial; so, for that reason, as well as for the other, the motion for a Dew trial must be denied. Ordered accordingly.
'11. SHAVER WAGON
(Oircuit OOU1't, N. D. lowa,
D. February 7,1888.)
Declarations made by a president of a corporation that a note indorsed to it . long before, and on which suit had been brought six months before, was not the property of the corporation, but indorsed to it only that suit might be brought in the United States court, are not admissible in evidence, without any showing that the president had authority to make such declarations 01' had any duty in the premisea. or was held out as the officer to whom application for informationshc;lUld be made.
EVIDENcE-AnMIssIONS-By OFF£CER OF CORPORA,TION-WHEN AnMISSIlu,E.
TUTHILL SPRING CO.
SHAVER WAGON 00.
Such declarations are no part of the res gestm when made to one not acting on'behalf of the defendant maker, and when no contract was made in consequence thereof, and when nothing was done or said on which defendant relied, or which affected its action.
At Law. Motion for new trial. The Tuthill Spring Company sued the Shaver Wagon Company on five promissory notes. Verdict for plaintiff. Defendant moves for a new trial. Oummins & Wright, for plaintiff. J. F. Duncombe, for defendant.
SHIRAS, J. This action is founded on five promissory notes, four of which were executed by the defendant company to the plaintiff, and the fifth to the order of W. T. Shaver. The latter note, for the sum of $8,858.52, was indorsed, without recourse, before maturity, to the plaintiff corporation by the payee thereof. The defendant admitted the execution of all the notes sued on, but as to the fifth note averred that the plaintiff was not the real owner thereof; that the same remained the property of W. T. Shaver; that the indorsement thereof was colorable only, being made for the purpose of conferring a colorable jurisdiction on the United States court, the payee of said note, W. T; Shaver, being a citizeu of the 8ame state as the defendant corporation. Upon the trial before the jury the only evidence offered by-defendant in support of the allegation that the plaintiff company was not in fact the owner of the fifth note sued on was the testimony of J. D, K. Smith, president of the defendant corporation, who testified that in May, 1886, some six months after this suit had been brought, he visited ChicaF:0 for the purpose of trying to negotiate a purchase for the benefit of his brother. of the notes in suit; that he saw T. W. Tuthill, the president of the plaintiff company; and that in the course of such conversation Mr. Tuthill told him that it was Shaver's scheme to:have the matter sued in the United States court; that the plaintiff company did not own the note; that it belonged to Shaver; but that they would not sell the company notes withoRt selling the Shaver note. This testimony was objected to by plaintiff when offered, and the objection was sustained. The defendant offering no other evidence, the court instructed the jury to return a verdict for the plaintiff', The motion for new trial presents the question whether the court erreq in refusing to admit the testimony as to the admissions and statements alleged to have been made by Mr. Tuthill, the president of the plaintiff corporation. It will be noticed that the interview between Smith and Tuthill was long after the note had been ind'orsed to the plaintiff, and some six months after suit had been brought thereon, It was not shown what pow,er or authority Mr. Tuthill, as the president of the Tuthill Spring Company, ,had in the management or control of its affairs. It was not shown that he was the party or officer of the company who had participatedin making the arrangement by which the Shaver notewas trans-
, " FEDERAL REPORTER·
ferred to the plaintiff, or that he had any actual knowledge ofthe facts of tp,' his admissions as against the, company was ,claimed upon'the sole ground that he was the president of the corporation, and must be deemed to have knowledge of all its affairs. If the contention of the defendant i.s correct, it would follow that the admissions and statements of the presiderit,directors and other general officers of cOrporatidn tonchingpast transactions would be competent evidenceagll.inst thecorporatioil under all circumstances. When the declaration sought to be proven forms part of the transaction involved in the litigation, it is deemed to be a verbal act, and, as part of the res gestt£, is admissible against the corporation.' So, also, declarations made by an officer of a corporation in response to inquiries relative to matters intrusted··to his charge, .may begiven in evidence against the corporation. when the fact of the inquiry made and the answer given are material or pertinent. to the issue involved. Bank v. Stewart, 114 U. S. 224, 5 Sup. Ct. Rep., 845. Unless the admission can be bronghtwithin one or both of the exceptions named, the general rule is that admissions or statements made by theofficers·of a corporation as to past transactions are not admissible against the corporaHon. Thus, in Packet Co. v. Clough, 20 WalL 528, which was an action to recover damages for an injury to a passenger, it wasfuled that the statements of the captain of the steamer, touching the accident, and the cause thereof, made two days after the event and before the coinpletion of the voyage, were not admissible agair:lst the company owning the boat, it being said that" an act done by an agent cannot be varied, qualified, or explained, either by his declara· tions, which amount to no more than a mere narrative of a past renee, or by ail isolated conversation held or an isolated act done at a later period.. The reason is that the agent to do the act is not authorized to narrate .what he had done, or how he had done it, and his declaration is no part of the res gestt£." In Railroad Co. v. O'Brien, 119 U. S. 99, 7. Sup. Ct. Rep.11S, it was held that the declaration of the engineer of a locomotive, made within 30 minutes after an accident had happened to his train, as to the speeq· the train was making when the accident occurrEld, was. not admissible in an action against the corporation. It is olear that the statements made by Mr. Tuthill in the conversation with Mr. Smith formed no part of the transaction by which the plaintiff corporation became the indorser of the Shaver note. This transfer had been made months before the conversation between the parties named took place. The rdeclarations then ,made cannot be admitted as part of the f'es gestt£. As already said, it was not shown that Tuthill had any special knowledge: of, the transaction ill regard to the transfer of the note, or that he was charged with any duty'connected therewith, or had any control over the Bame. When Mr. Smith had' the interview with him, the former was :not acting on behalf of the defendant. He was seeking to buy the notes held by the plaintiff for the benefit and in the interest of his brother.' No contract or agreement was made at that interview, or in consequence thereof. There was nothing done or said thereat upon which the defendant relied, or which affected its action or conduct.
CHICAGO, M. & ST. P. RY. CO.
The issue on trial before the court and jury involved simply the question whether when the note was indorsed by Shaver the indorsement was colorable only, or did the plaintiff in good faith buy said note, and become the real owner thereof. The best evidence on this issue would be testimony showing what in fact was done and said 'at. the time of the transfer, or in immediate connection therewith. The of Mr. Tuthill, and of aU other officersof the corporation having any knowledge of the transaction, could hR"e been taken, and thus the real facts of the matter could have been reached. Instead of procuring this testimony, the defendant sought to introduce a declaration or statement made by the president of the corporation long after the transfer of the note, and without any evidence showing that Mr. Tuthill had any authority to make such a declaration, or that he was charged with any duty in the premises,or was held out asthe officer to whom application for information should be If, under such circumstances, the declarations of Mr. Tuthill should be held binding upon corporation, and therefore admissible in evidence against it, it would be equivalent to holding that the corporation was / bound by aU statements or declarations made by ttny ofitsgeneral officers, no matter when or under what circumstances. It is not necessary to citelluthorltiesto show that so ;broad a proposition cannot beeustained'. The motion for new trial is therefore overruled.
M. & ST. P. Ry. Co.
(Oircuit Oourt, No
n. lowa, a. n.JulY24,l888.)
EuCUTORSAiI'D' ADMINISTRATORS-Al'POilifTMENT-COLLATERAL' ATTACK.
Where an administrator appears to be duly appointed by the district court of Iowa. which has exclusive jurisdiction of such appointments, the regularity of the appointment cannot be raised collaterally hi a suit brought by'the administrator. ' , ' '
At Law. On demurrer, to theans'Wer. " ' Suit by H. E.Francisco, administrator ofWilliam' E. Brannegan.deceased, against the Chicago, Milwaukee & ,st. Paul Railway Company, to recover for an accident causing the death of the said: deceased. Stanbury & Olark,Bherwin & SchermerhM"niand M. D. O'OonneU" for plaintiff. Gemge E. Olarke, for defendant.
SHIRAS, J. In the petition filed in this cause it is averred that on the 21st day of December, 1887, one William E. Brannegan, then in the employ of the defendant as a fireman on a locomotive, was killed in a collision occurring on defendant's road; it being averred that the collision was caused by negligence on part of the defendant company. It is also avel'Ied that the plaintiff has been duly appointed administrator of the