Statement of the Case.

The defendant in error, plaintiff below, is a manufacturer, engaged in the manufacture and sale of a crushing machine known as the "Blake" crusher. Plaintiff in error, defendant below, owns and operates a large mine of iron ore in Clinton County, New York. In 1881 and 1882 plaintiff built for defendant a crushing mill of 200 tons capacity per day, which was accepted by the defendant and satisfactorily used for years. The operation of this crusher and its adaptability to the business necessities of the defendant were thus fully disclosed to the latter by its experience of these years. With this experience and knowledge, the following contract was entered into between the parties:

"Memorandum of agreement made and entered into this 26th

day of March, 1886, between Theodore A. Blake, of New Haven, Conn., and the Chateaugay Ore & Iron Co., of Plattsburg, New York.

"Theodore A. Blake, party of the first part, in consideration of one dollar to him in hand paid and of other considerations, covenants and agrees to furnish the Chateaugay Ore & Iron Co. with a crushing plant, guaranteeing capacity of six hundred tons daily, crushed—to pass through a round hole

ths of an inch in diameter, consisting of the necessary crushers, screens, elevators, shafting, hangers, pulleys, couplings, collars and belts, in accordance with the specifications hereunto annexed and drawings already submitted, delivered free on board cars at places of manufacture, together with full detailed plans of building for said crushing plant and arrangement of crushing machinery therein, and that he will send a competent man to superintend the placing and erection of the machinery without extra charge, except for board and travelling expenses, and an experienced man to put on all belts, on same terms, for the sum of twenty-five thousand five hundred dollars.

"And the said Chateaugay Ore & Iron Co., party of the second part, in consideration of the premises and other considerations, agrees to pay the said Theodore A. Blake or his order one-half the amount, viz., twelve thousand seven hun

Statement of the Case.

dred and fifty dollars, on presentation of the bills of lading for the sixteen crushers at the said company's office and the remainder when the machinery is successfully running.

"THEODORE A. BLAKE,

"CHATEAUGAY ORE & IRON Co.,

"By A. L. INMAN, Gen'l M'g'r."

The first half of the purchase price was paid at the stipulated time. The crushing plant was completed and put in operation about the first of October, 1886. On October 7, defendant paid plaintiff $2500; on October 27, $2500; and about the 9th of November, $2500 in addition; making $7500 paid after the completion of the plant and the commencement of its operation, and leaving a balance under the contract of $5250, for which suit was brought. Another suit was also commenced for extras and the expenses of the superintendent. The two were consolidated by order of the court and proceeded to trial as one. Verdict and judgment were in favor of the plaintiff for $9574.53; to reverse which judgment the defendant, plaintiff in error, sued out this writ of error.

The assignments of error, so far as noticed by the court in its opinion, were:

First. In allowing the witness, Charles S. Brown, (the agent of Blake,) to testify on behalf of the plaintiff from certain memorandum books produced by the said plaintiff ;

Second. In refusing to permit defendant to offer testimony in rebuttal based upon the same books which it had ruled were admissible against it as set forth in the preceding assignment of error;

Third. In refusing to allow the witness Inman, the general manager of defendant and sworn on its behalf, to answer the question, "What in your judgment is the daily capacity of that mill?" the only objection being that the witness had not been shown competent to answer;

Fourth. In refusing to allow defendant to prove a general usage or custom in the business of mining iron ore whereby a day's work consists of two shifts of ten hours each;

Fifth, etc. In refusing requests for charges.

Argument for Plaintiff in Error.

Mr. Edmund Wetmore and Mr. Frank E. Smith for plaintiff in error.

I. The memorandum books from which Brown was allowed to testify were not competent evidence against the company. They were not books or records of the company, and Brown was Blake's representative at the mine. He caused these books to be kept, and the greater part of the entries are in his handwriting.

In February, 1887, after the keeping of the books was ended, a copy was sent by Brown to Mr. Inman, the general manager of the Iron Company. These circumstances plainly characterize the books as those of Mr. Blake and not of the defendant. As such they could only be used in his favor after the correctness of the entries had been established by some witness having knowledge of the facts recorded. The Mayor v. Second Avenue Railroad, 102 N. Y. 572, 579; Chaffee v. United States, 18 Wall. 516.

The books were not competent as admissions or declarations made by agents of the Iron Company. Admissions or declarations made by an agent as evidence against the principal stand upon an entirely different foundation from the admissions of the party himself. The unsworn statement of the agent to be received against the principal must not only relate to an act which the agent is authorized to do, but must also be made while the act itself is still pending. In other words, the statement of the agent is received only when it constitutes a part of the res gesta. Greenl. Ev., sec. 113. This rule is strictly adhered to by this court. Packet Co. v. Clough, 20 Wall. 528; Vicksburg & Meridian Railroad Co. v. O'Brien, 119 U. S. 99.

The foremen of the mill were not the agents or servants of the Iron Company, but of Blake as regards the books in question. The books were kept in the interest of Blake. The object of keeping them was to enable him to have a record of the work done by the mill. Whatever was done by any agent or servant of the defendant with reference to them was done at the request of Blake's agent and for his convenience. Manifestly it was impossible for Brown to be at the mill con

Argument for Plaintiff in Error.

stantly day and night. It was necessary that some one should assist him if he was to obtain a record which should cover the entire time. He selects for that purpose the men at work in the mill. These men could do his work only with the consent of their employer, the Iron Company, which consent was given and the men instructed to do what Brown desired done in this behalf. The men therefore in preserving the data on which the books were made were doing his work, and not the work of the defendant, which had, in the reports of its weigh-master an independent record of the ore crushed at the mill.

Even assuming that the foremen of the mill were in all respects the servants of the Iron Company, it was not within the scope of their authority to make admissions which should be evidence against their employer. First Unitarian Society v. Faulkner, 91 U. S. 415.

II. The refusal of the court to allow defendant to avail itself of the memorandum books, after plaintiff had used them against it was error. The testimony offered was strictly in rebuttal. We of course concede the rule that a party must exhaust his case in chief before he rests, and that testimony in rebuttal, as matter of strict right, must be confined to matter which denies or qualifies facts first proved by the other side. Marshall v. Davies, 78 N. Y. 414.

The actual working of the mill upon isolated days, or during particular parts of October or November, being facts first brought out by the plaintiff, after defendant's case was closed, it was strictly in rebuttal to show that the actual working upon other days at substantially the same time, was very different, and so qualify or limit the effect of the fact first proved by plaintiff. The right of a party after he has closed his case in chief, to offer evidence tending to deny, limit or qualify a fact first brought into the case by his adversary, or to contradict a statement made by one of his witnesses, is a strict legal right, and one which it is error to deny. French v. Hall, 119 U. S. 152; Winchell v. Winchell, 100 N. Y. 159; Ankersmit v. Tuch, 114 N. Y. 51; Asay v. Hay, 89 Inn. St. 77; Hayward v. Draper, 3 Allen, 551; Kent v. Town of Lincoln, 32 Vermont, 591.

Argument for Plaintiff in Error.

The testimony should have been received on the ground that it was an omitted part of an admission made by defendant, the other part of which had been used against it. The books themselves cannot be made competent evidence against defendant except on the theory that they were admissions made by an agent.

The party seeking to use an admission made by his adversary cannot pick out that part which is in his favor and omit what qualifies or limits it. He must take the whole or none. Insurance Co. v. Newton, 22 Wall. 32. Grattan v. Metropoli tan Life Ins. Co., 92 N. Y. 274, 284.

III. It was error to reject the testimony of Mr. Inman, defendant's general manager, as to the daily capacity of the mill.

The general manager of defendant was asked what, in his judgment, was the daily capacity of the mill? No objection was made that the capacity of the mill was not a proper subject for expert evidence, and indeed the plaintiff had made out his prima facie case in that way. The only objection was that the witness had not been shown competent to answer. It had been made to appear that he was familiar with the business and knew what the mill had done, as well as what a similar mill, built by plaintiff for defendant, some years previous, had done. It is submitted that the testimony showed the witness to possess such qualifications and knowledge as to make his testimony admissible, and that it was error to exclude it. Stillwell & Bierce M'f'g Co. v. Phelps, 130 U. S. 520.

IV. The court erred in refusing to permit defendant to show that the words “daily capacity" in the contract meant a day of twenty working hours.

The customs and usages of the business to which a written contract relates may be proved in aid of its interpretation, and the general usages of such a business are presumptively known to persons making contracts with reference to it. Hostetter v. Park, 137 U. S. 30, 40; McMasters v. Pennsylvania Railroad, 69 Penn. St. 374; Walls v. Bailey, 49 N. Y. 464.

It was competent to prove by parol evidence that the word "day" or "daily" used in the written contract had a peculiar

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