would have been folly to offer evidence of the actual amount of oak lumber on hand at mill and shipping station. If it was immaterial what the actual cut of 1903 was, it was equally immaterial what the actual amount of lumber on hand at date of contract. There is no sufficient ground for assuming that the witness Inman meant that the 714,000 feet of oak lumber about which he had been testifying was lumber cut during 1903. He was called upon to testify as to the different grades of oak deliverable under "this contract," and it is not reasonable to assume that he would confine himself to a detailed description of that which was cut during 1903, and omit all mention of that which was on hand. It was as essential in fixing the damage to know the different grades of that on hand as of that subsequently cut. The subject about which the witness was interrogated was the difference between the contract price and the market price of the lumber sold under "this contract"-a contract which covered lumber on hand and lumber to be cut. It would be most remarkable that he should go into details as to the varying quality and price of that cut in 1903, and omit all reference to that which was stacked at the mill and station, which must have likewise varied in quality and value. Still more remarkable that astute counsel for plaintiffs should struggle with persistence and much argument to exclude evidence of the amount of the cut of 1903 if they supposed the 714,000 feet of oak lumber referred to by Inman was the cut of that year, and that there was no denial of the correctness of the estimate of that on hand. To support their contention that the 714,000 feet classified by the witness Inman included only the oak cut in 1903, and that the absence of direct evidence or the offer of direct evidence as to the quantity of lumber on hand justifies the presumption of the correctness of the contract estimate of the lumber on hand, they refer to an affidavit made by the defendant Inman upon the motion for a new trial. But that by no means settles the question. It is only made the more apparent that when that affidavit was made no such contention as that now advanced was in the minds of any one of the parties. The materiality of the evidence excluded was made to turn upon the meaning placed by the court upon the contract, and not upon its pertinence in arriving at amount of damage, if that was not the right interpretation of the contract. Inman in his affidavit figures out the difference between market price and contract price upon two theories. One, that the agreement was for the sale of lumber on hand and the lumber produced during 1903. Upon that theory he puts down the quantity of oak deliverable at 714,000 feet. Now, if that did not include oak on hand and oak sawed in 1903, his estimate of aggregate difference between market and contract price would be of no importance. The other theory upon which he figures is that plaintiff was entitled to demand 1,500,000 feet of oak and 1,300,000 feet of gum. That he did not make a distinction between the amount of oak lumber on hand and that subsequently sawed was doubtless due to the way in which the future cut of oak is referred to. After specifically contracting for the sale of oak and gum on hand, the oak being estimated at 800,000 feet, the contract then provides as follows:

*

*

"It is also agreed that the Dudley & Daniels Company are to receive the entire cut of the first part for and during the year 1903, estimated to be 1,500,000 feet, more or less, plain and quartered red oak, including the stock on hand; also 1,000,000 feet, more or less, of log run gum at above prices."

The inclusion of the estimated 800,000 feet of oak on hand as a part of an estimated mill output of 1,500,000 feet doubtless led to an inclusion of the oak on hand with the mill cut by the witness.

We have no right to speculate as to the prejudicial effect of a plain error. If its nonprejudicial effect is not so clear as to exclude every reasonable doubt, we should reverse. That grave doubt at least exists of the aggregate of oak lumber on hand and cut during 1903 is enough to require a new trial. One of the defenses was that the parties, the plaintiff acting by its agent, D. W. Beard, had, on March 31, 1903, mutually agreed upon a rescission. The plaintiff company, as a part of its original evidence, though after Beard and other witnesses had been cross-examined as to the alleged agreement of recission of March 31st, offered in evidence a letter written by Beard to plaintiff on the night of that day, purporting to be a report of the occurrences of the day with the defendants, and a statement of certain complaints made by the plaintiff as to the financial responsibility of the defendants. The letter said nothing in respect of an agreement, nor of any proposition to rescind the contract. When offered it was objected to as a mere narration by plaintiff's own agents of the occurrences of the day with defendants. The purpose of offering it was thus stated by Mr. Biggs, counsel for plaintiff, who said:

"The purpose of introducing this letter is this: As I understand, the contention of these parties is that on that day Mr. Beard went there and canceled this contract, but he denies that he canceled the contract. He also states what occurred there that day-what occurred about his offer to attach sight drafts to bill of lading. The proof is that, as soon as the conversation was over, he went to Dyersburg, and wrote a letter to the Dudley & Daniels Company, which letter we want to introduce for the purpose of showing that he makes this report to the company of what occurred."

The court thereupon ruled that the letter was competent. That a letter written by an agent to his principal concerning the business of the latter is not evidence against a third person is elementary. Unless admissible as a part of the res gestæ, such a narrative would come within the definition of res inter alios acta. Written at a different place, and hence after the interview between Beard and Inman, it was nothing more than a narration of a past transaction. Freeborn v. Smith, 2 Wall. 160, 17 L. Ed. 922; Dwyer v. Dunbar, 5 Wall. 318, 18 L. Ed. 489; United States v. Corwin, 129 U. S. 381, 9 Sup. Ct. 318, 32 L. Ed. 710; Ins. Co. v. Guardiola, 129 U. S. 642, 9 Sup. Ct. 425, 32 L. Ed. 802. Such a letter or report by an agent to his principal about the latter's business is neither independent evidence against a stranger, nor admissible to corroborate the evidence of such agent. In case last cited the question was as to the number of hogsheads of sugar shipped. Letters written by the plaintiff's shipping agent to them at the time of their respective shipments, and stating number of hogsheads shipped, were admitted over objection. For this the judgment was reversed, the

court saying that the letters "were incompetent, either in themselves or in corroboration of the testimony of the agents, to prove the facts recited in the letters against third persons." The letter of Beard was not admissible to refresh memory of witness. He had already testified to the matter substantially as detailed in his letter, and needed no refreshment. Bates v. Preble, 151 U. S. 149, 14 Sup. Ct. 277, 38 L. Ed.

106.

In Vicksburg, etc., R. R. v. O'Brien, 119 U. S. 99, 7 Sup. Ct. 172, 30 L. Ed. 299, a statement made by a physician as to the nature and extent of injuries received by a passenger, and made when treating him, for the purpose of giving information to others, was held to have been erroneously admitted against the carrier, although attached to a deposition by the physician, who testified that it correctly stated the condition of the passenger at the time referred to. Nor was the letter offered or used to fix a disputed date, as in Dunlap v. Hopkins, 95 Fed. 231, 37 C. C. A. 52. There are certain cases in Tennessee holding that when there is a claim that a witness' testimony is a recent fabrication it is admissible to show consistent statements before there was any motive to falsify (Queener v. Morrow, 1 Cold. [Tenn.] 124), or when impeached by proof of contradictory statements (Hays v. Cheatham, 6 Lea [Tenn.] 1; Glass v. Bennett, 89 Tenn. 480, 14 S. W. 1085).

Without considering the question as to the weight of authority touching the admissibility of consistent statements at a time anterior to a motive for not speaking the truth, when a witness has been impeached by contradictory statements, it is enough to say that there was no such impeachment of Beard. There was a conflict between his version of a conversation and that of others, but we do not understand that a mere conflict between two or more witnesses will authorize the corroboration of one by his former statements. 2 Elliott on Evidence, §§ 991, 994, and Vicksburg R. R. v. O'Brien, cited above, seems conclusive upon such a question.

It has been suggested that Beard was a stranger, and surrounded by friends of the defendants and that they used indefensible threats, and that they have now conspired to testify as to what he did and said when alone and defenseless, and that under such circumstances his report, made shortly thereafter to his principal, should be admitted to corroborate a witness so situated. The suggestion when made in argument seemed to carry some weight, but an examination of the record shows that whatever threatening language may have been used was used long after the occasion when the alleged agreement for a rescission was made, and, moreover, that any such threats were made, not to Beard, but to his principal, Dudley, who, in company with his lawyer and Beard, had gone to the business house of Inman Bros. to learn why they refused to carry out the contract. The parties were then at arms' length, and plaintiff was preparing to preparing to enforce its rights. This affair of words was on April 11, 1903. The alleged rescission was on March 31, 1903, and Beard's letter was written on March 31, 1903. It is plain that an occurrence 11 days after the letter can supply no legal ground for admitting it as corroborative evidence.

For the errors noticed, the judgment must be reversed, and a new trial awarded.

SCHIFFER et al. v. ANDERSON.

(Circuit Court of Appeals, Eighth Circuit. May 9, 1906.)

No. 2,240.

1. COURTS-FEDERAL COURTS-DIVERSITY OF CITIZENSHIP.

The requisite diversity of citizenship exists where the plaintiff, & citizen of Iowa, sues a citizen of New York and two citizens of Colorado in the federal Circuit Court of the latter state. The right to object that the citizen of New York is being sued in Colorado is a privilege personal to him and cannot be made by his codefendants; nor is jurisdiction over the defendants, who are citizens of Colorado, affected by the fact that service is not had upon nor appearance made by the citizen of New York, the latter not being an indispensable party.

[Ed. Note. For cases in point, see vol. 13, Cent. Dig. Courts, §§ 856, 857;

Diverse citizenship as a ground of federal jurisdiction, see notes to Shipp v. Williams, 10 C. C. A. 249; Mason v. Dullagham, 27 C. C. A. 298.] 2. PARTNERSHIP-PLEADING-VARIANCE.

Where a complaint alleged that defendant S. was a member of defendant's firm, and though the other defendants had accurate knowledgeof the facts they did not specially traverse such averment, but proved the contrary under a general denial, the variance was not material, and the complaint would be deemed amended to conform to the proof. 8. MONEY RECEIVED-PLEADING.

Plaintiff alleged that he and his associate were informed that N. was the owner of certain land in Colorado; that they deposited with defendants, who were doing a banking business, $4,200 as earnest money to convince N. that they were acting in good faith in negotiating for the purchase of the property, which money was to be paid to N. when she made a conveyance to plaintiff and his associate, subject to certain mortgages, which were to be distributed among the portions of the land in a particular way, etc.; that N. in fact did not own the land, having contracted to convey the same to defendants for a less sum, and was unable to convey the land with the mortgages distributed according to agreement, whereupon plaintiff and his associate demanded a return of the money, which defendants refused; that plaintiff's associate transferred to him all his right to the money so deposited. Held, that the complaint stated a sufficient cause of action.

4. PRINCIPAL AND AGENT-ACTS OF AGENT-SCOPE OF AUTHORITY.

An agent purporting to represent N. as the owner of certain land attempted to negotiate a sale thereof to plaintiff, and as a part of the negotiations induced plaintiff and his associate to deposit $4,200 in defendants' bank, to be paid to N. on the delivery of title, etc. The agent represented that no one else was making any commission or profit out of the sale, and that the price charged plaintiff was N.'s lowest net price. In fact N. had given defendants a secret contract to sell the land to them for $3 less per acre, and, the transaction not having been consummated, plaintiffs sued to recover the deposit. Held that, whether the agent's acts were within the apparent scope of his authority or not, defendants could not deny his authority, and yet retain the money paid on the faith thereof.

5. EVIDENCE-ADMISSIONS OF AGENT.

Where a real estate agent was the secret but accredited representative of defendants in an attempt to sell certain lands to plaintiff, evidence of what he did and said while in the performance of his duty as agent was admissible against defendants.

[Ed. Note.-For cases in point, see vol. 20, Cent. Dig. Evidence, §§ 893907.]

In Error to the Circuit Court of the United States for the District

of Colorado.

This was an action by Anderson, a citizen of Iowa, to recover $4,200 from H. Schiffer, a citizen of New York, and Abe Schiffer and I. W. Schiffer, citizens of Colorado, who were alleged to be copartners as H. Schiffer & Bro., and also under the name of the Bank of Alamosa. H. Schiffer was not served with process, and did not enter an appearance in the cause. The evidence showed that he was not a member of the firm, and no judgment was rendered against him. The complaint was in four counts, each one setting up a different theory of the cause of action for the recovery of the same sum of money. Being required by the order of the trial court to elect upon which he would stand, the plaintiff selected the third. One McInturff, also a citizen of Iowa, was associated with the plaintiff in the transactions that resulted in the cause of action, but he assigned all of his rights to the plaintiff before the action was commenced. The trial was to a jury. The plaintiff secured a verdict and a judgment for the amount claimed, and the defendants, Abe Schiffer and I. W. Schiffer, copartners, as above stated, sued out this writ of error.

L. F. Twitchell (Frank C. Goudy and C. H. Redmond, on the brief), for plaintiffs in error.

T. J. O'Donnell (J. W. Graham, Jr., on the brief), for defendant in

error.

Before SANBORN, HOOK, and ADAMS, Circuit Judges.

HOOK, Circuit Judge, after stating the case as above, delivered the opinion of the court.

It is contended that the naming of H. Schiffer as a defendant was fatal to the jurisdiction of the trial court. But the plaintiff was a citizen of Iowa as was also his assignor of part of the cause of action. H. Schiffer was a citizen of New York, and the other two defendants were citizens of Colorado, where the action was brought. There was therefore such a diversity of citizenship between the plaintiff and his assignor on one side, and all of those named as defendants on the other, as satisfied the jurisdictional requirement. Sweeney v. Carter Oil Company, 199 U. S. 252, 26 Sup. Ct. 55, 50 L. Ed. 178. Had H. Schiffer been brought in by process, the assertion of an objection to being sued in Colorado would have been a privilege purely personal to him. Railway v. McBride, 141 U. S. 127, 130, 11 Sup. Ct. 982, 35 L. Ed. 659. It could not have been made by the other defendants. Moreover, had he been discharged by the court upon appearance and objection, the cause would nevertheless have proceeded against the others. He was in no sense an indispensable party. He was not served and did not appear. That there was no formal order of dismissal as to him does not affect the substantial rights of the parties.

It is also claimed that there was a variance between the complaint and the proofs. It was averred in the complaint that H. Schiffer was a member of the defendants' firm. While the other defendants had complete and accurate knowledge of the facts in the matter, they did not specifically traverse this averment in their answer, but under a general denial they furnished proof at the trial that H. Schiffer was not a member, and then contended that there was such a variance as defeated plaintiff's right to recover. The old technical rules as to