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28. The plaintiff's testimony concerning the woman's statement is
A plaintiff sued a defendant for breach of contract. The plaintiff's position was that the woman, whom he understood to be the defendant's agent, said, «On behalf of [the defendant], I accept your offer.» The defendant asserted that the woman had no actual or apparent authority to accept the offer on the defendant's behalf.
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Under FRE 801(d)(2), a statement by an opposing party (traditionally known as an «admission by a party-opponent») is not hearsay. Under this Rule, when the opposing party's statement is offered against that same opposing party and was made in either an individual or representative capacity, it is admissible. Statements by an agent or employee concerning any matter within the scope of her agency or employment, made during the existence of the agency or employment relationship, are admissible against the principal.
Under FRE 801(d)(2), the proponent of an agent's admission cannot prove that there was an agency relationship solely by means of the contents of the statement itself, although the contents of the statement may be considered as one piece of evidence.
B is correct. As explained above, an agent's admission may be introduced against the principal by an opposing party, as long as the admission was made during the course of an agency relationship and was within the scope of the agency. The statement itself may be admissible as part of the evidence in determining whether the agency relationship existed. Here, the relevance of the woman's statement to the plaintiff is conditioned upon a showing that the woman had actual or apparent authority to act for the defendant. If the woman did not have actual or apparent authority to act for the defendant, the statement would be irrelevant to the plaintiff's case against the defendant and it should not be admitted. However, the statement is admissible subject to the introduction of evidence sufficient to support a finding that the woman had actual or apparent authority to act for the defendant.
A is incorrect. This answer reaches the correct answer with the wrong reasoning. It misstates the standard for determining the admissibility of evidence whose relevance is conditioned on facts not yet shown. The court does not have to make a finding by a preponderance of the evidence before it admits the statement, it may admit the statement subject to evidence sufficient to support a finding that the woman had authority to act for the defendant.
C is incorrect. It is irrelevant whether the woman is available to testify in order for the court to determine whether the plaintiff's testimony is admissible. The testimony is admissible as long as there is sufficient evidence to support a finding of an agency relationship.
D is incorrect. If the woman had apparent or actual authority to act for the defendant, the statement would not be hearsay, it would be an admission by a party-opponent. A statement can be admitted into evidence conditional on a finding that the statement is relevant and non-hearsay. If the conditions are met, the statement remains in evidence. If not, the statement is struck by the court.