#### J. A. STYLES v. WHITING MANUFACTURING COMPANY.

(Filed 13 December, 1913.)

Principal and Agent — Declarations of Agent — Trials—Evidence.

Declarations of an agent made witbin tbe scope of tbe agency and concerning tbe very business about wbicb tbe declaration is made, whether tbe principal be a person or corporation, is competent in evidence to tbe same extent as tbe declaration of tbe principal would be; and in tbis case is held applicable to tbe declarations of an agent as to tbe amount of hauling and delivering logs done by tbe plaintiff upon wbicb be was to receive compensation in commission of a certain per cent.

Appeal by defendant from Ferguson, J., at Fall Term, 1913, of G-kaiiam.

Tbi§ action is to recover money alleged to be due on certain logging contracts. • Tbe plaintiff offered evidence tending to prove*tbat be logged. 92,437 feet at $3.55 per 1,000 feet; tbat bis contract was tbat be was to bave 75 per cent of tbe money wben bis logs were cut and skidded by tbe side of tbe railroad track, and was to bave thé other 25 per cent wben loaded on cars; be admitted tbat be bad been paid tbe 75 per cent on tbe 92,437 feet, but contended tbat tbey bad beld back $82.03, or 25 per cent, and as tbe logs bad been loaded and bauled'away, be was entitled to tbis; tbat be bad logged 9,900 feet at $3.35 per 1,000 feet, for wbicb be bad not been paid anything; tbat tbe defendant owed him $34.14 on this; tbat be sold out bis contract to Bryson & Griffith, and tbat tbey logged 92,661 -feet, and tbat tbey afterwards turned tbe contract back to him, agreeing with him tbat be could bave tbe 25 per cent beld back on these logs. It was admitted by tbe plaintiff tbat if Bryson & Griffith bad been paid, be could not recover on tbat account.

In order to fix tbe amount of logs skidded by Bryson & Griffith, tbe plaintiff was allowed to testify, over tbe objection of tbe defendant, tbat some one, whose name be could not remember, who, be stated, was scaling logs for tbe defendant, bad given him a slip of paper, and that tbis paper showed tbat Bry-son & Griffith bad logged 92,661 feet, and tbat 25 per cent of same amounted to $80.97.

*377Tbe defendant requested bis Honor to charge the jury that the plaintiff could not recover - anything on the Bryson & Griffith account, which was refused, and the defendant excepted.

His Honor charged the jury, among other things: “The work which was done by Bryson & Griffith, if he was to have the 25-per cent retained on that, and you find that it was not paid'to Bryson & Griffith, the 25 per cent which was retained is still due and unpaid, then he would be entitled to- .recover that amount.”

There was a verdict and judgment for the plaintiff, and the defendant appealed.

Dillard & Sill for plaintiff.

Morphew & Phillips for defendant.

Per Curiam.

The natural interpretation of the evidence of the plaintiff as to the declaration of the agent of the defendant is that the declaration was made while the agent was engaged in the work- of scalinglogs for the defendant, for the purpose of ascertaining the true measurement, and so understood, is competent.

The rule as to the admissibility of such evidence is stated in Gazzam v. Insurance Co., 155 N. C., 340, to be that, “The competency of the declarations of an agent of a corporation rests upon the same principle as the declarations of an agent of an individual. If they are narrative of a past occurrence, as in Smith v. R. R., 68 N. C., 107, and Rumbough v. Improvement Co., 112 N. C., 752, they are incompetent; but-if made within the scope of -the agency and while engaged in the very business about which the declaration is made, they are competent. McComb v. R. R., 70 N. C., 180; Southerland v. R. R., 106 N. C., 105; Darlington v. Telegraph Co., 127 N. C., 450.”

His Honor properly refused to give the instruction prayed for. If the defendant owed Bryson & Griffith on the logging contract, and at the time they assigned the contract to the plaintiff they agreed that the plaintiff should have the amount due them, he was entitled to recover it.

No error.