of an engineer or conductor of a train, made after an accident and constituting no part of the transaction, are not receivable, as he has no implied authority to make statements which will be binding on his principal. So a corporation is not bound by the admissions of its officers, trustees, directors or stockholders unless either they have been specially authorized to make the admission or it has been made as a part of some authorized transaction; 2 for it is a general rule that admis

sions or declarations of an agent which are narrative in character must, in order to bind the principal, be within the scope of his power, whether general or special, or must relate to the subject of his agency and be a part of it. Accordingly

the principal is never bound by the admission or declaration of a person made by the latter before he has become an agent or after the agency has terminated.2

As regards written admissions under seal, no particular form of words is necessary to bind the principal, provided the instrument is sealed with the principal's seal and signed with his name by the agent for him. If the instrument does not show that it is intended to be the admission of the principal, it will not generally bind him, though the agent in signing may have affixed his title or indicated that he signs

v. Seventy-six L. & W. Co., 87 Cal. 323; Pemigewasset Bank v. Rogers, 18 N. H. 255; Green v. North Buffalo, 56 Pa. St. 110; Salado College v. Davis, 47 Tex. 131; Wellington v. Boston R. R. Co. (Mass., 1893), 33 N. E. Rep. 393; Schroepel v. Syracuse Plankroad, 7 How. Pr. (N. Y.) 94; Low v. Connecticut, etc. R. Co., 45 N. H. 370; Cleveland, C., C. & L. Ry. Co. v. Closser, 126 Ind. 348. See Res Gestæ, $$ 54-57.

1 Beasley v. Fruit Packing Co., 92 Cal. 388; Ohio & M. Ry. Co. v. Stein (Ind., 1892), 31 N. E. Rep. 180; Strawbridge v. Spann, 8 Ala. 820; Phelps v. James (Iowa, 1893), 53 N. W. Rep. 274; Perkins v. Burnett, 2 Root (Conn.), 30; Mobile, etc. Co. v. Klein, 43 Ill. App. 63; Galceran v. Noble, 66 Ga. 367; Maltby v. Kirkland, 48 Fed. Rep. 760; Mix v. Osby, 62 Ill. 193; Covington, etc. Road v. Ingles, 15 B. Mon. (Ky.) 637; Idaho Ford Co. v. Firemen's Ins. Co. (Utah, 1893), 29 Pac. Rep. 826; Yordy v. Marshall Co. (Iowa, 1893), 53 N. W. Rep. 298; Gutchess v. Gutchess, 66 Barb. (N. Y.) 483; Telephone Co. v. Thompson, 112 Pa. St. 118; Vassar v. Knickerbocker

Ice Co., 17 N. Y. S. 182; Holt v. Spokane R. Co. (Idaho, 1894), 35 Pac. Rep. 39. Where the authority of the agent is disputed by the principal, the declarations and acts of the alleged agent are not received in favor of a third party to prove the existence of the agency. Mussey v. Beecher, 3 Cush. (Mass.) 517; Trustees, etc. v. Bledsoe, 5 Ind. 133; Brigham v. Peters, 1 Gray (Mass.), 145; Dowden v. Cryler (N. J., 1893), 26 Atl. Rep. 941.

2 Bensley v. Brockway, 27 Ill. App. 410; Levy v. Mitchell, 6 Ark. 138; Wiggins v. Leonard, 9 Iowa, 194; Haven v. Brown, 7 Me. 421; Stiles v. Western R. Co., 8 Met. (Mass.) 44; Williams v. Williamson, 6 Ired. L (N. C.) 281; Raiford v. French, 11 Rich. (S. C.), 367; Colquitt v. Thomas, 8 Ga. 268; Watermann v. Peet, 11 Ill. 648; Renolds v. Rowley, 2 La. Ann. 890; Polleys v. Ocean Ins. Co., 14 Me. 141; Caldwell v. Garner, 31 Mo. 131; Vail v. Judson, 4 E. D. Smith (N. Y.), 165; Brigham v. Carr, 21 Tex. 142; Rahm v. Deig, 121 Ind. 283; Davis v. Whitesides, 1 Dana (Ky.), 177.

in a representative capacity,' as by inserting in some part of the instrument the name of the principal.2

Declarations of an agent are inadmissible to prove the existence of the agency or to show that the extent of the authority actually conferred was larger or smaller than is alleged.*

§ 74. Admissions by attorneys of record. The declarations of an attorney are only binding as admissions upon his client when they are formal and deliberate, as where written stipulations are entered into to facilitate the prosecution of the suit by dispensing with some technical rule of procedure or agreeing upon certain proof which it is proposed to produce. But verbal statements by the attorney in casual con

1 Briggs v. Partridge, 64 N. Y. 357; Meech v. Smith, 7 Wend. 315; Whitford v. Laidler, 94 N. Y. 155; Dayton v. Warne, 43 N. J. L. 659; Mahoney v. McLean, 26 Minn. 415; Taylor v. Association, 68 Ala. 229; Hancock v. Yunker, 83 Ill. 208.

"Faw v. Meals, 65 Ga. 711; Robinson v. Kanawha, etc. Co., 8 N. E. Rep. 683; Sturdivant v. Hull, 59 Me. 172; Tilden v. Barnard, 43 Mich. 376. Hardy v. Cheny, 42 Vt. 417; Rhodes v. Lowry, 54 Ala. 4; Duryea v. Vosburgh (N. Y., 1890), 24 N. E. Rep. 308; French v. Wade, 35 Kan. 891; Haughton v. Maurer, 55 Mich. 823; Lafayette, etc. Co. v. Elman, 30 Ind. 83; Seymour v. Matteson, 42 How. Pr. (N. Y.) 496; Osgood v. Pacey, 23 Ill. App. 116; Bowker v. Delong, 141 Mass. 351.

4 Lycoming Ins. Co. v. Ward, 90 Ill. 545; Chicago R. Co. v. Fox, 41 id. 106; Galbreath v. Cole, 61 Ala. 139; Stollenmaeck v. Thatcher, 115 Mass. 224; Lolmer v. Insurance Co., 121 id. 439; Mapp v. Phillips, 32 Ga. 72; Carter v. Burnham, 31 Ark. 212; Dawson v. Landreaux, 29 La. Ann. 363; Grover, etc. Co. v. Polhemus, 34 Mich. 247; Stringham v. Insurance Co., 4 Abb. App. Dec. (N. Y.) 315.

5 Hanson v. Hoit, 14 N. H. 56.

5

6 Voisin v. Insurance Co., 67 Hun, 365; McRea v. Insurance Bank, 16 Ala. 755; Mather v. Phelps, 2 Root (Conn.), 150; Perry v. Simpson Mfg. Co., 40 Conn. 313; Worley v. Hinman (Ind., 1893), 33 N. E. Rep. 866; Proctor v. Old Colony R. Co., 154 Mass. 251; 28 N. E. Rep. 13; Martin v. Capital Ins. Co., 52 N. W. Rep. 534; Reynders v. Hindman, 88 Ga. 314. Cf. Milbank v. Jones, 17 N. Y. S. 464. An attorney cannot compromise a suit without express authority (Maye v. Cogdell, 69 N. C. 93; Repp v. Wiles (Ind., 1892), 29 N. E. Rep. 441; Holker v. Parker, 7 Cranch, 436; Peters v. Lawson, 66 Tex. 336; Barrett v. Railroad Co., 45 N. Y. 628, 638; Granger v. Batchelder, 54 Vt. 348; Crotty v. Egle, 35 W. Va. 143; Whitehall v. Kellar, 100 Pa. St. 89; Martin v. Insurance Co. (Iowa, 1893), 52 N. W. Rep. 534); though he may submit a demand to arbitration. Brooks v. New Durham, 55 N. H. 559; McElrath v. Middleton (Ga., 1893), 14 S. E. Rep. 906; Talbot v. McGee, 4 B. Mon. (Ky.) 377; White v. Davidson, 8 Md. 169; Williams v. Tracy, 95 Pa. St. 308.

versation cannot be regarded as the admissions of the client, though pertaining to the subject of litigation, for the attorney is the agent of the client only so far as the management of the cause which has been committed to him in court is con cerned, and upon general principles cannot bind his principal outside of the scope of his authority.3

Written admissions by an attorney, made either before beginning suit or after its termination and referring to it, are never admissible against the client unless they were expressly authorized by him."

A client is estopped by the admissions of his attorney, in the absence of gross mistake or fraud, where, relying on such admissions, reciprocal admissions have been made by his opponent. If the authority of the attorney to make the admissions exists generally, his admissions, when not acted on by the other side, are prima facie evidence only, their sole effect being merely to relieve the adverse party from showing the facts involved in them."

1 Angle v. Bilby, 25 Neb. 595.

2 See as to admissions of agents, § 73a.

3 Bank v. Anderson, 28 S. C. 148; Perry v. Simpson Co., 40 Conn. 313; Lord v. Bigelow, 124 Mass. 185; Lewis v. Duane, 68 Hun, 28; Underwood v. Hart, 23 Vt. 120; Young v. Wright, 1 Campb. 139; Wright v. Dickinson (Mich., 1890), 42 N. W. Rep. 849. An unauthorized communication by the attorney to a person against whom the client intends to bring suit is not binding on him. Salomon, etc. Co. v. Jones, 34 Kan. 443. So the malice of plaintiff in an attachment suit cannot be shown by the admissions of his attorney. Floyd v. Hamilton, 33 Ala. 235.

Proctor v. Old Colony R. Co., 28 N. E. Rep. 13; Morris v. Balkham, 12 S W. Rep. 970; 75 Tex. 111; Janeway v. Skerritt, 30 N. J. L. 97; Marshall v. Cliff, 4 Camp. 133; Walden v. Bolton, 55 Mo. 405; Moffitt v. Wither

spoon, 10 Ired. L. 185; Murray v. Chase, 134 Mass. 92; Reineman v. Blair, 96 Pa. St. 155. If the attorney is authorized to speak for his client, the admission of the attorney's clerk is the admission of the attorney. Taylor v. Williams, 2 B. & Ad. 845; Griffith v. Williams, 1 T. R. 710. An admission of the truth of a fact by an attorney in one suit is admissible in another suit only where the client authorizes it by his acquiescence in it. Nichols v. Jones, 32 Mo. App. 657; Morris v. Balkham, 75 Tex. 111.

5 See post, §83; Wilson v. Spring, 64 Ill. 18; Wheeler v. Alderman, 34 S. C. 533; Smith v. Milliken, 2 Minn. 319.

6 See 82-84; Truby v. Seybert, 12 Pa. St. 101; Floyd v. Hamilton, 23Ala. 235; People v. Garcia, 25 Cal. 531; Moulton v. Bowker, 59 N. Y. 533; Cassels v. Usry, 51 Ga. 621; Bathgate v. Haskin, 59 N. Y. 533.

§ 75. Offers of compromise-Admissions under duress.Admissions involved in overtures for a settlement of litigation or in offers of compromise understood to be without prejudice will not be admissible in evidence against a party.1 Evidence of an offer to pay a sum of money to stop litigation or buy peace, without reference to the justice of the demand, is always rejected on grounds of public policy and from the fact that such evidence is usually wholly irrelevant.'

If the admission of a collateral fact tends to admit the merits of the case, it may be presumed from the circumstances that the admission was confidential and without prejudice, and an agreement will be implied that it was not to be used against the party.3

1 Huetteman v. Viesselmann, 48 Mo. App. 582; Darby v. Roberts (Tex., 1893), 22 S. W. Rep. 529; Hand v. Swann, 1 Tex. Civ. App. 241; York v. Conde, 66 Hun, 316; Olson v. Peterson, 33 Neb. 358; Smith v. Whittier, 95 Cal. 279; West v. Smith, 101 U. S. 263; Perkins v. Concord Road, 44 N. H. 223; Daniels v. Woonsocket, 11 R. L. 4; Gay v. Bates, 99 Mass. 263; Strong v. Stewart, 9 Heisk. (Tenn.) 137; Duff v. Duff, 71 Cal. 513; Jackson v. Clopton, 66 Ala. 29; Gommersol v. Crew, 10 N. Y. S. 231; Daily v. Coons, 64 Ind. 545; Mundhenk v. Central Iowa R. Co., 57 Iowa, 718; Campau v. Dubois, 39 Mich. 274; State Bank v. Dutton, 11 Wis. 271; Patrick v. Crowe, 15 Colo. 543; Keaton v. Mayo, 71 Ga. 649; Barker v. Bushnell, 75 Ill. 220. As to power of attorney to compromise, see § 74. Contra, McElwee v. Trowbridge, 68 Hun, 28. Whether a payment of a claim is an admission of its justice or a mere purchase of peace is a question of fact to be determined by the court. Colburn v. Groton (N. H., 1894), 28 Atl. Rep. 95.

2 Davey v. Lohrman, 14 N. Y. S. 922; Davis v. Simmons, 25 Pac. Rep. 535; Eldridge v. Hargreaves, 30 Neb.

638; 46 N. W. Rep. 923; International Co. v. Ragsdale, 67 Tex. 27; Barker v. Bushnell, 75 Ill. 220; Strong v. Stuart, 9 Heisk. 137; Williams v. State, 52 Ala. 411; Draper v. Hatfield, 124 Mass. 53; Daniels v. Woonsocket, 11 R. I. 4; Hood v. Tyner, 3 Ind. App. 51; Cooper v. Jones, 79 Ga. 379; Manistee Bank v. Sprague, 64 Mich. 59; Louisville, etc. Co. v. Wright, 115 Ind. 378; West v. Smith, 101 U. S. 273. An admission of an independent or collateral fact not involving the merits of the case will be received against the party making the offer unless the whole offer was expressly without prejudice. Fuller v. Hampton, 5 Conn. 416; Akers v. Kirk (Ga., 1894), 18 S. E. Rep. 366; Mayor v. Howard, 6 Ga. 213; Doon v. Ravey, 49 Vt. 293; Cates v. Kellogg, 9 Ind. 506; Arthur v. James, 28 Pa. St. 236; Church v. State, 1 A. K. Marsh. (Ky.) 328; Central Branch U. P. R. Co. v. Butman, 22 Kan. 446; Plumer v. Currier, 53 N. H. 287; Cole v. Cole, 33 Me. 542; Garner v. Myrick, 30 Miss. 448; West v. Smith, 101 U. S. 273; Home Ins. Co. v. Baltimore W. Co., 93 id. 548.

3 White v. Old Dom. S. Co., 102 N. Y. 662; Brice v. Bauer, 108 id.