
    TANNER against PARSHALL.
    
      Court of Appeals ;
    
    
      March Term, 1867.
    Evidence,—Admissibility oe Accounts. —Admissions.
    In an action in which the question is whether a certain transaction was a sale of property, or a delivery to the defendant as agent of the plaintiff, it is competent to prove an entry made by the plaintiff, in his books, of the transaction as a sale, if accompanied by proof that the entry was subsequently read to the defendant, and he admitted its correctness.
    Upon such a question, the jury cannot consider the actual value or the unsoundness of the property, as a circumstance in connection with the price, bearing upon the question.
    Appeal from a judgment.
    This action was brought by Perry Gr. Tanner, plaintiff and respondent, against Anson C. Parshall, defendant ■ and appellant, to recover the price of a horse alleged to have been sold and delivered to the defendant in Sept., 1856. The cause was tried the second time at the Otsego circuit, in June, 1860.
    The principal question litigated on the trial, was whether the horse was sold to the defendant for $500, or whether he was delivered to the defendant to be taken to New York, by one Baird, and sold on plaintiff’s account; and on this question the testimony of the plaintiff and defendant was directly in conflict, and, with other evidence more or less bearing upon the truth of the version of either party, was submitted to the jury, who found for the plaintiff.
    On the trial, the plaintiff, under the objection and exception of the defendant, was permitted to show that on the same day that he claimed to have sold the horse to the defendant, he went to his store, and in the absence of the defendant, made an entry in his book of accounts, charging defendant with the horse, at $500, and that he subsequently exhibited this entry to the defendant, who admitted its accuracy. The judge allowed the entry to be read to the jury, and charged that it was a circumstance tending to prove the alleged sale. The principal question in the case was, whether this evidence was properly admitted.
    
      John H. Reynolds, for the defendant, appellant.
    —I. Evidence was given of the fact that immediately after the alleged sale of -the horse to the defendant, the plaintiff went to his store and made an entry of the sale on his book of accounts ; and the justice charged that “if the plaintiff made a memorandum or entry of the sale immediately after he got down to the store, it would be a circumstance tending to show the alleged sale.” This was manifest error. (1.) The entry was not made in the presence of the defendant, and was no part of the res gesta ; it was at a different time from that of the sale, and a different transaction (Erben v. Lorillard, 19 N. Y., 300 ; Young v. State, 28 Pa. St., 501; 1 Greenl. Ev., § 108). (2.) It was not intended as a memorandum to refresh the recollection of the witness ; there was no pretended failure of recollection as to the sale, the date, or the amount, or in respect to any thing connected with it. It was given in evidence and put to the jury as an independent fact tending to prove a sale (Brown v. Jones, 46 Barb., 400). (3.) It was nothing more than the plaintiff’s declaration in his own favor; and nothing can be clearer than that the declarations of a party, after the transaction has closed, and the parties thereto have separated, are not admissible in favor of the parties making them (Ogden v. Peters, 15 Barb., 560). (4.) Entries made by a person, even in the course of his duty or employment, are inadmissible as evidence in his own favor (Doe v. Whitefoot, 8 Car. & P., 270; Meysick v. Wackley, Id., 283 , 8 Ad. & El., 175). (5.) The fact that the plaintiffs charged goods in their books as sold to the defendant, is not admissible on the issue whether the sale was made to him or to another (Smith v. Anderson, 7 Mann. Gr. & 
      
      Scott, 21, 31; 1 Smith Lead. Cas., 413 ; Leighton v. Foster, 11 Fost., 119). (6.) The plaintiffs letter to the defendant in case of an alleged sale is inadmissible (Jacoby v. Laussatt, 6 Serg. & R., 300). (7.) The statement of a complainant immediately after an alleged robbery, is not admissible in evidence, though proved by another (People v. Finnegan, 1 Park. Cr., 147). (8.) Nor is the declaration of the holder of a check, on coming out of a bank, that he had demanded payment, admissible to prove a demand (Bruce v. Lark, 4 Yerg., 210 ; Lund v. Inhabitants, 9 Cush., 42). (9.) Nor is the statement of a person of the terms of a transaction, immediately after a negotiation, on going into the next room, admissible in evidence (Smith v. Webb, 1 Barb., 231; Draper v. Weld, 13 Gray, 580 ; Carter v. Gregory, 8 Pick., 165 ; Robb v. Hackly, 23 Wend., 50). (10.) A party cannot make evidence for himself, by making a written statement of a transaction; and this entry was not admissible for the purpose of corroborating the statements of the plaintiff as witness. Evidence of such a character, for such a purpose, is not now received (Robb v. Hackly, 23 Wend., 50, 55 ; Dudley v. Bolles, 24 Id., 465, 472; People v. Finnegan, 1 Park. Cr., 147; Smith v. Stickney, 17 Barb., 489 ; 1 Greenl. Ev., §469 ; Conrad v. Griffing, 11 How. U. S., 480). (11.) The court below admitted the evidence in question, for the reason that the plaintiff, as he testified, after-wares exhibited the entry to the defendant; but the jury were charged ta the effect that the making of the entry by th« plaintiff was a fact tending to show the alleged sale. The charge did not put it on the ground of its being aft&wards shown to the defendant, with proof that he promisecto pay the charge.
    II. EVdence was given, tending to show that at the time of thealleged sale of the horse to the defendant, he was lame, rfisound, with many apparent defects, and was not worth evm $150 or $200. And the judge charged the jury that in determining the fact whether there was a sale of the hose at $500 or not, they had no right to take into consideraron the actual value or the unsoundness of the horse as a circumstance bearing on that question. (1.) This was error. In cases like the present, where the evidence is contradictory and closely balanced, the evidence referred to is proper to be considered by the jury. (2.) If the horse was unsound, apparently lame, and not worth more than $150, it is improbable that the defendant would have paid the alleged price for him, without even exacting a warranty. It was a circumstance tending to show the improbability of the plaintiff’s story.
    III. The daughter of the plaintiff testifiéd that on the day of the alleged sale, the plaintiff said to her, in the presence of the defendant, “I have sold Billy.” And it was error to say to the jury that this tended to prove the fact of a sale, because the defendant did not deny it. The defendant was not called upon to say anything. It does not appear that he knew who “Billy” was, or to what the plaintiff referred. The judgment should be reversed, and a new trial granted.
    
      L. J. Burditt, for the plaintiff, and respondent.
   Hunt, J.

—This case was eminently one for the jury. We have nothing to do with the decision. We accept it as the correct determination of the disputed facts before them. The legal proposition before us is quite sinqie. We are not called upon to decide whether the entry by the plaintiff of the sale of the horse to the defendant in the plaintiff’s book, was a part of the res gesta, no/ are we to decide whether the entry alone would have been competent evidence. Here the offer to read the entjf was accompanied by the offer, also, to prove that the entry was subsequently read to the defendant, and tha he admitted its correctness. That a statement by the plaintiff to the defendant, whether verbal or written, chffging the latter with the purchase of a horse, at the agreed price of $500, which statement was then assented to be the defendant, is competent evidence against the 1/tter, would seem to be too plain a proposition for dishssion. The offer, as made, was proved, and was corroborated by the defendant, so far as that he admitted that the statement was read over to him. -He denied that he admitted its correctness, or promised to pay it.

The charge to the jury was upon the same subject-matter, and in reference to the whole of the same.. I think there could have been no misleading of the jury, and no misunderstanding by them of the questions before them.

The judge further charged the jury that in determining whether the defendant bought the horse, and agreed to pay $500 for him, they had no right to take into consideration the actual value, or the unsoundness of the horse, as a circumstance bearing on that question. If the jury had been engaged in deciding whether the defendant had made a good bargain in purchasing the horse, such evidence would have been material. So if there had been inquiry whether there had been a breach of an alleged warranty of soundness, the evidence referred to would have been important. But it was entirely immaterial upon the question whether the defendant had purchased the horse, or had received him from the plaintiff to sell on his account. As a legal proposition it could have no tendency to establish either a sale or an agency. There was no error in the instruction to the jury.

Heither was there any error in this instruction : that if. the defendant heard the remark which the plaintiff’s daughter testified that the father made to her, “that he had sold Billy,” and did not deny it, it was competent evidence. The presence of the parties there, and the taking away of the horse by the defendant, would justify the jury in applying the remark to the horse in question.

The judgment should be affirmed.

GROVER, J.

(dissenting). —Ho question was made but that the testimony of the plaintiff, that he read the entry on his book charging the horse to the defendant, at five hundred dollars, and that the latter promised to pay it, was competent. But did this render competent the additional testimony of the plaintiff, that he made the entry immediately after the alleged sale. The case shows that this latter testimony was used as independent evidence of a sale of the horse "by the plaintiff to the defendant. It appears from the charge that the jury were told "by the learned, justice, that if the plaintiff made a memorandum or entry of the sale immediately after he got down to the store, it would be a circumstance tending to show the alleged sale. The question is whether the evidence was ^competent for this purpose. If it was, the charge was correct. If not, the reception of the evidence, and the charge, were erroneous. The only point in issue was whether the defendant purchased the horse of the plaintiff. Upon this point the evidence was conflicting. The inquiry is whether reading the entry or charge to the defendant a long time afterward, and his promise to pay the amount, rendered testimony that the entry was made by plaintiff immediately after his arrival at the store, after the alleged sale, competent evidence of such sale. • The testimony of the defendant denying such promise, and that he emphatically repudiated the claim, can have no bearing upon the question. It was for the jury to determine as to the credibility of the witnesses, and the duty of the judge, in deciding upon the competency of evidence, .to regard the testimony of each as possibly true. It is an elementary principle that a party cannot give his own acts or declarations in evidence in his own favor, unless a part of the res gestee. Making the charge was no part of the transaction between the parties, and not, therefore, admissible upon that ground. How can the alleged promise of payment by the defendant make the time when the charge was made by plaintiff, or the fact that it was made by him, admissible evidence against the defendant? What the defendant had the right of proving was, what occurred between the parties at the time the entry was made, and this as an admission of the defendant.- This could not make any other evidence competent, unless necessary to explain the admission which that admission referred to, and which the circumstances showed was referred to in the conversation. This did not include the time of making the charge, or who made it. Evidence of these latter facts was, I think, incompetent, and its admission was error.

Evidence of another person was received, that he saw the entry on the book shortly after the delivery of the horse. This was also incompetent. In reference to this evidence the judge charged the jury, that making the charge by plaintiff, immediately upon his return to the store, was evidence of the sale of the horse. This, I think, was also error. This part of the charge was not qualified by stating that it would be evidence provided the jury believed that the defendant had promised to pay subsequently. It would not have been correct if so qualified. There was no pretense that the defendant made any admission of the time when the charge was made, or by whom. The case shows that the defendant might have been prejudiced by this evidence. When the issue was whether the horse was sold to the defendant, or whether ■ he was to deliver him to Baird, to take to New York, and sell, on plaintiff’s account, proof that the plaintiff made such a charge, directly after the transaction, and before any dispute arose,, might have a controling effect upon the jury. I think proof of the chattel mortgage given by Baird to defendant also inadmissible. These transactions between Baird and defendant had no tendency to show upon what terms the defendant received the horse in question. The only effect produced thereby would be, possibly, to create a prejudice in the minds of the jury against the defendant. I think the judgment should be reversed, and a new trial ordered.'

Pobtee, Weight, Scetjgham, Boches, and Pabkeb, JJ., and Davies, Ch. J., concurred in the opinion of Httht, J.

Judgment affirmed.  