Opinion of the Court.

MR. JUSTICE WOODS delivered the opinion of the court. The defendants in error were the plaintiffs in the Circuit Court. They alleged in their petition that the plaintiff in error, the First National Bank of Xenia, Ohio, being in possession of thirty shares of its own capital stock belonging to their intestate, Daniel McMillan, on October 24, 1876, sold them for $4,200 in cash, and unlawfully appropriated the proceeds of the sale to its own use. They therefore demanded judgment against the bank for $4,200, with interest from October 24, 1876.

The defendant answered that McMillan, the intestate, in April, 1876, was owing it, upon a debt previously contracted, a sum greater than the value of the stock, and, being so indebted, delivered to it the certificates of stock as collateral security therefor, and that on October 24, 1876, the debt being still unsatisfied, the defendant sold the stock at its market value and applied the proceeds as a credit on the debt, leaving a balance due and unpaid.

The plaintiffs replying denied that their intestate delivered the certificate of stock to the bank as collateral security for such debt, and denied the right of the bank to receive the certificates as collateral security, or to sell the stock or apply its proceeds to the payment of the debt.

Upon this issue the jury returned a verdict for the plaintiffs, and assessed their damages at $6,035.50, upon which the court rendered the judgment which the present writ of error brings under review.

The only issue in the case was found by the jury for the defendants in error. The judgment, should, therefore, be affirmed, unless the court, in the progress of the trial, committed some error to the prejudice of the plaintiff in error. This the latter insists was done.

The first assignment of error relates to the admission in evidence of certain declarations of F. H. McClure, the cashier of the plaintiff in error.

The bill of exceptions states that on the trial the defendants in error offered testimony tending to show that the intestate, Daniel McMillan, was, on April 14, 1876, the owner of thirty

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Opinion of the Court.

shares of the capital stock of the bank standing in his name upon its books, represented by two certificates, one for twenty and the other for ten shares; that on the day just mentioned he made his note for the payment, six months after date, to the order of F. A. McClure, of $2,600; that he attached the certificate for twenty shares to this note as security for its payment, and through the medium of the payee, McClure, who was the cashier of the plaintiff in error, the note was discounted by one James K. Hyde, and that the remaining ten shares were deposited with the plaintiff in error, and held by it for safekeeping, and not for any other purpose; that on Monday morning, October 23, 1876, McMillan died, and that on the afternoon of that day, McClure, the cashier, having heard of the death of McMillan, sold his thirty shares of stock to E. H. Munger for $4,200, and credited that amount to McMillan on the books of the bank.

The bill of exceptions further stated that the defendants in error introduced evidence tending to show that a few days prior to his death McMillan had paid to the bank the amount due on his note held by Hyde, who had deposited the note with the bank for collection, and that two days after McMillan's death, Hyde, after notice by McClure of the payment of the note, received from the bank its certificate of deposit for the amount due thereon, and the note, with the certificate of stock pledged for its payment, was surrendered by Hyde to the bank, which thus obtained possession of the certificate.

Thereupon the defendants in error offered in evidence the following questions and answers contained in the deposition of Hyde:

"Q. What conversation did you have with McClure subsequent to this (subsequent to leaving said note for collection), with reference to that certificate (20 shares)?

"A. He told me he had full power to transfer it at any time on the books and apply it to the payment of the note.

"Q. What was said to you by McClure at the time of the payment of the note, in reference to this certificate of 20 shares?

"A. I desired to purchase it, but there was an understand

Opinion of the Court.

ing that I should hold the certificate of deposit until an administrator was appointed, when an arrangement might be made

"Q. What statement did McClure make to you at the time of the payment of the note, as to who was making payment? "A. He said the payment was made from money which was sent there by McMillan. He told me the money was left there the Wednesday previous.

"Q. Was any statement made to you by McClure, with reference to this certificate of stock after McMillan's death, in reference to Mrs. McMillan; if so, what?

"A. He told me after McMillan's death that she preferred to keep the stock.

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Q. How long after the talk on Wednesday after McMillan's death till the other talk in which McClure told you Mrs. McMillan wished to keep the stock?

"A. Two months, I presume.

"Q. Where did the latter take place?

"A. In the bank; they all took place there."

The ruling of the court in allowing these questions and answers to be read to the jury, notwithstanding the objection of the plaintiff in error, is now assigned for error. Its contention is, that it furnished the money to pay McMillan's note for $2,600, held by Hyde, for which the certificate for twenty shares was pledged, and that it thereby, on the delivery of the certificate to it by Hyde, became entitled to the possession thereof as security for the note. The defendants in error insist that the money to take up the note held by Hyde was paid by their intestate, McMillan.

The plaintiff in error complains that upon this issue the statements of McClure, its cashier, made several days after the alleged payment of the note by McMillan, were admitted to show such payment, and insists that this was error, on the ground that the declarations of an agent concerning a past transaction cannot be given in evidence to bind his principal.

Opinion of the Court.

The rule upon this subject has been thus laid down by this

court:

"Whatever an agent does or says in reference to the business in which he is at the time employed and within the scope of his authority, is done or said by the principal, and may be proved as if the evidence applied personally to the principal." American Fur Co. v. United States, 2 Pet. 358.

It is because the declaration of an agent is a verbal act and part of the res gesta that it is admissible, and whenever what he did is admitted in evidence, then it is competent to prove what he said about the act while he was doing it. Mechanics' Bank of Alexandria v. Bank of Columbia, 5 Wheat. 326, 336; Cliquot's Champagne, 3 Wall. 114; Cooley v. Norton, + Cush. 93; Hannay v. Stewart, 6 Watts, 487; Garth v. Howard, 8 Bing. 451.

Applying these principles, we think the testimony objected to was properly admitted. The declarations of McClure were made, so the record states, at the time that he paid Hyde the amount of the note. They were, therefore, clearly a part of the transaction. For Hyde, being the holder of the certificate of stock as collateral security for the note, was entitled to know by whom the payment of the note was made, so as to decide whether to return the certificate to McMillan or turn it over to the bank, or, if it was left with the bank, in what capacity the bank took it, whether for its own security, or as agent for McMillan. The declarations of McClure were made to Hyde in explanation of the payment of the money to him, and were, therefore, admissible as a part of the act of payment.

The declarations of McClure in reference to the purchase by Hyde of the twenty shares of stock were made at the same time, and as they were offered as tending to show by whom the money to pay the McMillan note was furnished, they were also a part of the transaction, and on that ground admissible.

The plaintiff in error contends that a conversation which took place two months after the payment of the note, between McClure and Hyde, in reference to the purchase by the latter of the twenty shares of stock was wrongly received in evidence.

Opinion of the Court.

But it plainly appears from the record that this second conversation was part of a treaty between McClure and Hyde, commenced on the Wednesday after McMillan's death, when the McMillan note was paid, for the purchase of the twenty shares of stock by Hyde. It was offered to show by the declarations of its cashier that the bank did not when the declarations were made claim any general or special property in the stock, but in effect admitted it to be the property of the estate of McMillan.

The declarations made by an officer or agent of a corporation, in response to timely inquiries, properly addressed to him and relating to matters under his charge, in respect to which he is authorized in the usual course of business to give information, may be given in evidence against the corporation. Bank of Monroe v. Field, 2 Hill, 445; McGenness v. Adriatic Mills, 116 Mass. 177; Morse v. Connecticut River Railroad Co., 6 Gray, 450; Abbot Trial Evidence, 44.

As cashier, McClure had charge of all the money, securities and valuable papers of the bank. Wild v. Bank of Passamaquoddy, 3 Mason, 505; Franklin Bank v. Steward, 37 Maine, 519. It was his duty to surrender securities pledged for the loans of the bank upon payment of the loans. Fleckner v. United States Bank, & Wheat. 338, 360. And, although he might not be authorized to dispose of the securities of the bank without the order of the directors, yet it was within the scope of his general authority as cashier to receive offers for their purchase, and to state whether or not the bank owned securities which a customer wanted to buy. This naturally fell within his duty as the executive officer of the bank and the custodian of its assets. His statement to a person who was in treaty to purchase, that the bank was not the owner of a certain security in his manual possession as cashier, was clearly within the line of his duty, and was, therefore, binding on the bank. We think there was no error in admitting in evidence the declarations of McClure.

The bill of exceptions further states that the plaintiffs below offered in evidence the following letter: