The opinion
The opinion of the court was delivered by
Horton, C. J.: The first claim of the plaintiffs' in error is, that the admission of Lee and the settlement had with him on November 24th, 1875, were not legal evidence against the sureties, and were impropérly received as competent to establish the demand of Brown & Co. against all of the plaintiffs in error. The general rule is, that if the declarations of the principal were made during the transaction of the business for which the party was bound, so as to become part of the res gestae, they are admissible against the surety, otherwise not; and that all declarations of the- principal made subsequently should be excluded, by analogy, to the case of agency. (Greenleaf on Ev., 12th ed., vol. 1, '§ 187, p. 215; Brandt on Suretyship and Guaranty, §518; Stetson v. Bank of New Orleans, 2 Ohio St. 167 .)
The question therefore arises, whether these admissions and the settlement were made in the progress of any business intrusted to Lee, so as to become part of the res gestee. The evidence showed that after the date of the written undertaking sued on, Brown & Co. opened a lumber ánd furniture store in Fredonia, Wilson county; that Lee was placed in charge, as their agent; that on'November 24th, 1875, Brown ■& Co. learned that Lee had sold out all the lumber and furniture furnished him by B. & Co. and had paid but little money to the firm; that on said 24th of November, Lee admitted to a member of said firm that all the furniture he .had received of them was gone, and that thereupon a settlement was had between the firm of B. & Co. and Lee, which was put in writing and signed by both parties, to the effect that there was due from Lee to the firm $2,357.85.
This admission and settlement were after the default of Lee. These matters referred to past occurrences; they had no connection with the acts to which they related, except as a narrative or admission of what Lee had done at dates prior "thereto, and ought not to have been received as evi-, dence so as to bind his sureties; for it was the acts of Lee, and not his admissions or declarations, for which his sureties were bound.
Counsel for defendants in error attempt to avoid this conclusion as applicable in the case at bar, by the argument that the admissions sought to be introduced occurred before the breach of the bond. The evidence is the other way. The goods and merchandise of Brown & Co. were all disposed of prior to Nov. 24th, and before said date they had many times demanded their return. This had been refused, and Lee had failed to pay the differences which had already cccurred. It seems that, instead of acting honorably and faithfully with his principals, he had used their money to buy furniture in St. Louis and Kansas City. All of this was before his admissions and the written settlement. These declarations were after the breach, and no part of the res gestee.
The same counsel cite several cases to the effect that the general rule stated by us concerning the non-admissibility of the declarations of a principal, does not control here, as the action against the plaintiffs in error (defendants below) was against them jointly, and on a joint bond. These authorities do not apply, as they are all based upon the theory that if the plaintiffs below failed against one of the defendants, they must have failed entirely in their action, and if they recovered against one, they must have recovered against all. The bond was several, as well as joint, and evidence competent against Lee would not necessarily be competent and admissible against his sureties. The plaintiffs below could • have recovered against Lee, and yet failed in their claim against the sureties.
The judgment against Lee will be affirmed, and reversed as to the sureties, Messrs. Hough, Jackson, and Craig. The case will be remanded for a new trial as to the latter parties.
All the Justices concurring.