The opinion
On Motion for Rehearing.
HALL. C. ,T.
We have again reviewed the record, and are convinced that the original ■disposition of this appeal is proper. It appears from the statement of facts that Law-ver testified:
“It is a fact that I remember it to be a fact, that the market value of maize from September, 1920, to January, 1921, declined a great deal.”
In the very next sentence, when being examined by the very same attorney, he testified as follows:
“From September 13, 1920, to the middle of January, 1921, it declined very little, possibly 30 or 40 cents a hundred at least.”
These two contradictory statements, made almost with the same breath, when taken with his other testimony, quoted more at length in the original opinion, show that he ■was not qualified to testify'as to the market value, and that he was correct when he stated that he was not acquainted with the market value of maize at White Deer on January 14, 1921. A fact as material to the rendition of a proper judgment in the case as the market value of the maize is shown to be should be established by the testimony of a witness who knows such market value, and a judgment which rests upon the testimony of such a witness as Lawver, who after stating un-qualifiedly that he did not know the market value, upon being pressed, makes what is clearly a
guess
as to what such value is, is insufficient to support a judgment. It does not appear that Lawver was hostile to the appellees or an unwilling witness in their behalf. On the contrary, he was the first witness introduced by appellees, and was at the time of the trial engaged in the business of buying grain in competition with the appellant, and had not been in the employ of appellant for several mohths.
A review of the authorities confirms us in the opinion that the court erred in permitting the appellees to establish market value by proof of Lawyer’s statement made on the 15th day of January that the market value
si
maize was 60 cents per bushel. Appellees insist that this statement is an admission, binding upon appellant company. We cannot assent to this contention. Before this statement can be held to bind the company it must be shown to have been made in connection with the performance of some duty which Lawver owed to his principal or the statement must have been expressly authorized by his principal. It must have been made as a necessary part of his conduct as agent, and, moreover, it must appear that it was within the scope of his authority as agent to make it. As expressed by the author cited in the original opinion:
“The declaration must be related to and connected with the business of the principal then pending.”
If there was no reason for making the declaration and no occasion demanding that Lawver should tell the appellees what his opinion was- as to the market value of grain on that day, then it was not made in the performance of his duties. The statement is unofficial, and is simply an expression by Law-ver as an individual, and is inadmissible to bind the corporation. Moreover, it is uniformly held that a statement of an officer or agent of a corporation, in order to bind the company, must be a necessary part of
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the transaction which the agent is authorized to perform, and must be the statement of a fact as distinguished from a mere expression of opinion. It was not shown, nor should it be inferred, that the appellant had authorized Lawyer to inform the public generally or any of its customers or patrons, as to the condition of the market or the market price of grain at any particular time. Since the appellant was in the business of buying grain from the public, the reasonable inference, if any, should be that it had instructed Lawyer not to give out any such information. Consideration for its own interest usually prompts a purchaser to withhold such information from those with whom it is dealing at arm’s length.
It is a matter of common knowledge that the market prices of grain and other products are published daily, and it is not clear why the company should be held to be a bureau of general information upon that subject, nor why it should be bound by the expression of its agent’s opinion relative to a fact appearing more definitely in the columns of the daily papers. There is no direct proof that Lawyer was authorized to give the appellees any information as to the market value of maize. No duty rested upon him to do so, and he must be held to have acted as' an individual, and the appellant is not bound unless his statement was related to and necessarily connected with his act in declining to consummate the purchase of the maize. The appellees testified that they went to his office to ascertain' whether he was going to receive the grain, and while there they asked him what the market price of maize was on that day. In the performance of his duty to his principal, he simply had to tell the appellees that his company would not accept the maize. Clearly in order to do this it was neither necessary nor proper for him, as representative of his company, to give appellees, at their request, his opinion as to the market value of the grain which he had refused to accept. On the contrary, there was every reason why he should not give such information to Ms principal’s adversaries.
Appellees quote section 113 (13th Ed.) Greenleaf on Evidence, as follows:
“The admission or declaration of his agent binds him only when made during the continuance of the agency in regard to the transaction then depending,” etc.
We think this is correct statement of the rule which should govern in this case, and the author further restates it in section 114, Id., as follows:
“It is to be observed that the rule admitting the declarations of the agent is founded upon the legal identity of the agent and the principal, and therefore they bind only so far as there is authority to make them. Where this authority is derived by implication from authority to do a' certain act, the declarations of the agent to be admissible must be part of the res gestae, and authority to make an admission is not nec-ossarily^to be implied from an authority previously given in respect to the thing to which the admission relates.”
The appellee does not contend that Law-ver’s statement as to market price is in any sense a part of the res gestae, nor can such contention be made because the thing being done at that time amounted to a breach of the contract. We will not undertake to review all the authorities cited in the motion; to do so would unnecessarily lengthen this opinion. Suffice it to say that none of the Texas cases cited are in conflict with the conclusions we have heretofore announced. Ap-pellee quotes from the case of Gerlach Mercantile Co. v. Hughes (Tex. Civ. App.) 189 S. W. 784 . Geo. Gerlach bought goods for his company, and in doing so made certain statements, and it was correctly held “that what he said in relation thereto” was admissible. In the instant case the expression of Lawver of his opinion as to the market value bears no relation whatever to his refusal to accept the maize. Again the agent’s statements, in the case of Standefer v. Aultman & Taylor Co., 34 Tex. Civ. App. 160 , 78 S. W. 552 , as to the condition of the machine, was clearly admissible, because they concerned the very matter he had been specially sent to remedy, and this is also true of the agent’s declarations in the cases of Cooper Grocery Co. v. Britton (Tex. Civ. App.) 74 S. W. 91 , and G., C. & S. F. Ry. Co. v. Cunningham, 51 Tex. Civ. App. 368 , 113 S. W. 768 . Appellees cite the case of Missouri Pacific Railway Co. v. Gernan, 84 Tex. 141 , 19 S. W. 461 . That case, when considered with a companion ease (Missouri Pacific Railway Co. v. Sherwood), found in 84 Tex. 125 , 19 S. W. 455 , 17 L. R. A. 643, illustrates the correctness of our holding with reference to LawvePs admissions. In the Gernan Case the consignee sought to bind tbe railway company by a statement in a letter to the consignor, written by the general agent of the carrier, in which it is recited that the cotton was burned at Greenville after its delivery to the carrier. The court held that the letter was admissible because the general agent was invested with authority to adjust the claim, and that his statement as to the loss of the cotton was within the scope of his agency. In the Sherwood Case an effort was made to show the loss of the cotton by a statement made by one C. H. Dent to Mai’tin-Wise & Fitzhugh, which statement was attached to the deposition of plaintiff’s witness, O’Neal. The statement was shown to have been in the handwriting of Dent, who was the freight claim agent of the appellant railway company. It was held by the Supreme Court to be inadmissible, Tarlton, Justice, saying:
“In making the statement here in question, it does not appear whether or not Dent was act
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ing within the scope of his agency, we are nowhere apprised of the extent of his authority except by the nse of the term ‘freight' claim agent,’ and about the duties and powers of such an agent the record is silent. Until it had been made to appear that such a statement was made in the discharge of the agent’s duties, or within the scope of his powers and while the obligation of the carrier with reference to the cotton yet continued, the statement should have been excluded.”
The appellee does not contend that it was any part of Lawver’s duty to give general information to the public relative to the market value of the grain. There is not a scintilla of evidence that he was authorized by the appellant to give such information, and it is certainly clear that it was neither necessary, relevant,- nor proper for him to make such a statement in declining to consummate the contract.
Believing that the matters presented in the motion were properly disposed of by the original opinion, it is overruled.
KLETT, J., not sitting.