
    The Juniata Bank of Pennsylvania against Brown jun.
    
      Tuesday, June 14.
    In a suit between A, and B, the book of original entries of C, is not evidence to shew a collateral fact, as that A, was charged by C, as a partner in a certain house.
    The holder of a promissory note drawn in favour of A, and indorsed by A, B, and C, gave up the note to A, and took a bond for the amount from A, B, and C, held, that in a suit in the name of the holder for the benefit of A, C was a competent witness for A.
    In a suit on a promissory note, under the plea of payment, the defendant claimed deductions on the ground of fraud in the plaintiff in an under-estimate of the debts due by a partnership concern for an interest in which the note was given; held, that the plaintiff, to shew that it was a mistake in the estimate and not fraud, may give evidence of the omission in such estimate of property belonging to the partnership.
    To make a confirmation of a contract in which a man has been defrauded, very strong facts must be shewn; and iu particular it must be shewn, that he had full knowledge of the truth.
    In ERROR.
    THIS was a writ of error to the Court of Common °f Mifflin county, where a verdict and judgment were had in favour of the defendant, William Brown jun.
    
      The suit was brought upon a promissoxy note for 1522 dollars 50 cents, drawn by the defendant, payable to Joseph Ftartin, and indorsed by the said Joseph Martin, Samuel Martin, and Joseph M'-Coy. The note was discounted by the Tuniata Bank, and protested for non-payment. After the commencement of this action, the Bank gave up the note and took a bond for the amount of what was due on it from Joseph Martin, for whom it was discounted, with Francis M'-Coy, Samuel Martin, and James Milliken, securities. It was admitted on the record, that the Bank had no intei-est in the suit, and that Joseph Martin was the real plaintiff; so that in fact the real parties to this suit were Joseph Martin and William Brown jun. The note on which the suit was brought, was one of several notes given by the defendant to Joseph Martin in consideration of a contract, by which the defendant purchased from Joseph Martin, all his interest in the partnership property of every kind belonging to the firm of Miller, Martin, Co. The persons composing this firm were, Samuel Miller, Joseph Martin, and John Brozvn. They were possessed of iron works and a store of goods, and When the defendant purchased of Joseph Martin, it was agreed, that he should take the place of the said Joseph Martin, and be responsible for all the debts for which Martin would have been responsible had he continued a partner. The defence set up against the payment of the note was, that the consideration on which it had been given, had failed; inasmuch as the defendant had- been defrauded b.y Joseph Martin, in his representation of the debts due from Miller, Martin, &? Co. and particularly in the amount of a debt due to the house of Francis M'-Coy, & Co., of which the defendant alleged, that Joseph Martin was a secret partner, although Martin denied it. ■ It being important to the defendant to prove that Joseph Martin was a partner in the firm of Francis M’-Coy, Co. he, for this purpose, offered in evidence the deposition of John Cook of Philadelphia. In this deposition the deponent having said, that to the best of his knowledge and belief Joseph Martin was a partner in trade with Francis M'-Coy, proceeded as follows: “that on examining the books of the late firm of Cook Si Cresson, of which the deponent was a partner, he found an entry in their day-book under date of 10th month 12th, 1811, Francis M'-Coy and Joseph Martin, trading under the firm of Fran
      
      cis M'-Coy Es? Co.” To that part of the deposition containing the extract from the books of Cook Es? Cresson, the plaintiffs objected; but the Court permitted it to be read, and an exception was taken to their opinion.
    The plaintiff offered Francis M‘ Coy as a witness on his behalf; but he was objected to by the defendant as incompetent, and rejected by the Court. Another exception was taken to this opinion.
    
      John Brown, one of the house of Miller, Martin, EÍ Co. was examined as a witness for the defendant, and gave a full account of the conversations and transactions which passed previous to the defendant’s purchase from Joseph Martin. He proved, that Joseph Martin was the active partner, and book-keeper of Miller, Martin, Ei Co. It was the wish of John Brown, thát his brother, the defendant, should make the purchase, and he thought the offer of Joseph Martin a good one. .John Brown’s opinion, that Martin’s offer was advantageous to his brother, was founded on an estimate which the three partners of the firm of Miller, Martin, Co. had just made of their stock and d.ebts. When the purchase was proposed to the defendant he remarked, that the goodness of the offer would depend on the amount of debts owing by Miller, Martin, Esf Co. In order to satisfy him on this head, an estimate of the debts was laid before him. It turned out, that the debt to Francis M’-Coy Es? Co. was upwards of 4000 dollars more than the estimate. This the defendant contended, must have been fraudulent, as Joseph Martin must have known the true state of this debt j particularly as he was a partner, (as the defendant asserted,) of both houses. But Joseph Martin denied his being a partner of M'-Coy, and declared, that he was mistaken as to the amount of the debt due to M'-Coy Es? Co, and he offered evidence to shew, that in another instance he had made a mistake which operated in favour of the defendant, viz. that in the list of properly by which Miller, Martin, Ss? Co. made their estimate, there was an omission of many articles of considerable value. To this evidence the defendant objected, and the Court rejected the evidence. To this decision a third exception was taken.
    A fourth exception was taken by the plaintiff to the following passage in the charge of the Court. “It is said the defendant has confirmed the contract. I do not understand the testimony in this case to amount'to a confirmation. I understand a confirmation to be, where a person knowing his rights, executes a deed of confirmation or other act of equal solemnity in point of law. Here William Brown was to give his bonds or notes ; and he did so in pursuance of the agree- ’ , , . ,, , . meat. If he had renewed the notes, it would have been a confirmation. If, when he tendered the money at the bank, he knew what he knows now, and did not set up the defence, the jury ought to consider it. But if he did not know it, or-was not instructed in it, it was not a confirmation, and he is not bound by it. But the jury will judge.” It appeared in evidence, that one of the defendant’s notes which fell due in 1816, was renewed by the defendant, and afterwards paid; and that he offered at the bank to pay the note on which this suit was brought, if the bank would deduct more than one-half its amount, alleging, that he was deceived as to that part; that it was for one-third of the salary which the partnership had allowed Joseph Martin.
    
    
      Burnside and Hall, for the plaintiff in error.
    1. That part of Cook’s deposition, which contained a copy of the entry in the books of Cook Cresson, was improperly admitted in evidence. It went to shew, that Joseph Martin was a partner in the firm of M'-Coy c£? Co.; a fact which is not to be proved by a book of original entries. Such evidence is permitted between the seller and buyer, to shew goods sold ; but not to prove a collateral fact, such as, that a third person assumed to pay the debt. Poultney v. Ross.
      
       It does not appear who made these entries in the books of Cook £s? Cresson, nor when they were made ; and under such circumstances depositions containing transcripts of them ought not to be received. Vance v. Ferris,
      
       2 Yeates, 213.
    But the copy of such book is no evidence of any thing; the book itself should be produced.
    2. Francis M'-Coy had no interest in this suit. The bank gave up the note on which the suit was founded, and took a bond with new security ; and it was entered on the docket, that Joseph Martin was the real plaintiff. The indorsers by these proceedings were discharged. Phill. Ev. 34. 209. 15 Johns. 270. 10 Johns. 21. 6 Binn. 306.
    3. The Court below erred in rejecting the evidence of M, 
      Snyder, offered to prove that in the estimate of the personal property of Miller, Martin, U1 Co., many articles were omitted. An estimate of personal property had been given *n evidence by the defendant, and the plaintiff had a right to shew that that estimate was wrong. Besides, as the equity of the case was the subject ot inquiry, it was material to shew the amount of property received by the defendant, who was endeavouring to avoid his contract on the ground of having suffered by deception. It was important to shew, that if the defendant was a loser by the estimate of debts owing by the partnership, he was a gainer by the estimate of the personal property.
    4. We object to that part of the charge in which the Court said, that the acts of the defendant did not amount to a confirmation. The defendant had renewed and paid one note ; and offered to pay part of the one in dispute. He objected Only to the amount of Joseph Martin's salary. The Court ought to have stated all the facts and left them to the jury.
    
      Potter and Carothers, contra.
    1. The deposition first states, that Joseph Martin was a partner of M'-Coy, and next refers to an entry in the books of Cook Cresson for the purpose of fixing a date. It was referred to by the witness as a memorandum, to refresh his memory. A witness may refresh his memory by referring to a writing by himself, or if made by another and examined by himself while the matter was fresh in his memory ; or he may assist his memory by a copy of a memorandum. Phill. Ev. 209. It is true, that in a suit between debtor and creditor the book must be produced; but there was no occasion here to produce the book, because it would not have been evidence. It was referred to merely as a memorandum.
    2. The note was discounted by the bank, and suit brought by the bank. Pending the suit, the defendant, with all the indorsers, gave the bank additional security. The debt to the bank is not paid, and the indorsers all remain liable in some way. If the bank recover in this suit, M'-Coy may come into Court and demand, that the money maybe applied to the payment of the bond in which he is bound to the bank. They cited, 1 Dall. 270. 1 Mass. Rep. 73. 2 Binn. 382. 2 Vern. 608.
    3. The evidence of M. Snyder was properly rejected, because it did not relate to the matter in issue, viz. the misrepresentation of Joseph Martin as 'to the debts of Miller, Martin, £sf Co. On this fact the defendant rested his defence, and no evidence to any other point ought to have been received. Joseph Martin cannot set-off against the iniury . , ,. r . . , , . r. done by his own fraud a mistake in the estimate of the personal property. The defendant did not purchase on the basis of any estimate of personal property which was shewn to him. It does not appear by the evidence, that any such estimate was ever shewn to him. By the written agreement, the whole property was sold at a fixed price ; and parol evidence should not be received with respect to it. Lee v. Biddis.
      
    
    
      4. The Court was right in charging, that if the defendant acted under a full knowledge of the truth, his acts would have amounted to a confirmation; but it would be otherwise if done under an ignorance of material facts. 2 Pow. on Cont. 183. 1 P. Wms. 727. 3 P. Wms. 294.
    
      
      
         1 Dall. 238.
    
    
      
       1 Yeates, 321. 2 Dall. 217. S. C.
    
    
      
      
         1 Yeates, 8.
    
   The opinion of the Court was delivered by

Tilghman C. J.

[After stating the facts of the case.]

By ancient custom in Pennsylvania, the books of original entry of a merchant, or shopkeeper, are received as evidence of the sale and delivery of goods. This rule was founded on convenience. In early times, many traders could not afford to keep clerks ; they were forced to give credit on sales of their goods, and it was supposed there would be no great danger in permitting their own entries to be prima facia evidence, provided they were made at the time the sales took place. But they never were admitted as evidence of the payment of money: there was no.necessity for this, as it is the business of a man who pays money, to take a receipt for it. Neither could there be the least reason for their being admitted as evidence of a collateral matter in which a third person was concerned, as for instance, in a case like the present, where the books of Cook £? Cresson are offered, not to prove a sale and delivery of goods by them to F. MiCoy Co., but to prove, merely for the benefit of William Brown jun., that Joseph Martin was a partner of F. M Coy. Besides, if the book was evidence, it should have been produced ; an extract could not be evidence. But. the defendant’s counsel say, that although neither the book nor the extract in themselves might be evidence, yet the deponent might'refresh his memory, by the use of this extract. Certainly he might have refreshed his memory, and then swear with a memory refreshed; but he had no right to introduce into his deposition, the matter which he had made use of to refresh his memory. A witness examined at the bar, may look at his notes for the purpose of refreshing his memory, and then, if he can with a safe conscience, he may swear from his own recollection; but he would not be permitted to read his notes to the jury. Now, in the present instance, it is endeavoured, in a side way, to get before the jury, a writing, which in itself was not evidence. But this must not be permitted, because it might have an influence on the jury. If Mr. Cook, after examining his books, could have taken on himself to swear, that Joseph Martin, was a partner of Francis M Coy, it would have been all very well. But if not, that fact must not be made out from the books. I am of opinion therefore, that the. evidence ought not to have been admitted.

The second exception in this cause, was taken on the rejection of the testimony of Francis M‘ Coy, who was offered as a witness for the plaintiff. The Court thought him interested, because he was indorser of the note on which this suit was brought. Considering all circumstances, I cannot perceive how the witness could gain or lose by the event of this cause. As an indorser he was discharged, because the bank had given up the note, and having joined in the bond given to the bank for the amount of the note, he is liable on that bond at all events. But the defendant’s counsel contend, that he has an interest, because if Joseph Martin recovers in this suit, the Court, by an exercise of its equitable jurisdiction, could compel him to apply the money recovered, to the payment of the bond in which Francis M'-Coy is a security. I know of no such power existing in the Court. No evidence was given of any agreement to apply the money received in this suit, to the payment of the bond. It is to be presumed, that when Francis M'-Coy became a surety for Joseph Martin, he took cai'e to procure an indemnification. But if he did not, the Court had no more power to give him a lien on the money received in this suit, than in any other suit in which Joseph Martin might have happened to be plaintiff. I am therefore of opinion, that he was a competent witness.

To understand the third bill of exceptions, it is necessary to state some of the evidence given by the defendant. 0 J

[Here the Chief Justice stated the evidence.]

To this evidence, the counsel for the defendant objected, and the Court rejected the evidence. The reason assigned by the President of the Court, is, that the defendant rested his defence on the fraud of Joseph Martin, in misrepresenting the amount of debts, and therefore, the plaintiff’s evidence should be confined to that point. I confess, that I am not satisfied with this reason. This case is attended with peculiar circumstances. The defendant purchased from the plaintiff, property to a large amount, which he holds, and intends to hold : he does not ask to avoid his contract in toto ; he retains the property, and undertakes to shew, that in equity, certain deductions should be made from the purchase money. But if the equity of the case is to be gone into, is it not reasonable, that the whole transaction should be investigated ? The counsel for the defendant say, that the list of property on which the estimate was founded, was not shewn to the defendant, and therefore, he was not influenced by it. I do not perceive by the evidence on record, that it was shewn to him; and yetj it would be very extraordinary, that a man should undertake to give a certain sum, for the amount of stock which another held, without having an inventory of that stock shewn to him. The defendant assum'es, that Joseph Martin acted fraudulently. It is possible, however, that there might have been a mistake, without fraud. It was very important for Joseph Martin, to clear himself from this imputation of fraud, and it might have been a favourable circumstance, if he had shewn, that he made mistakes against himself, as well as in his own favour. The defendant has made out a case, which, unless the plaintiff answers, the cause is against him. But I would permit the plaintiff, in making his answer, to give evidence of all the inventories and estimates on which Miller, Martin, Co. acted, previous to the purchase made by the defendant; and also to shew, that in those inventories or estimates, there were errors. What would be the effect of errors, if any were shewn, is ri&t now to be decided. Upon the best consideration which I have been able to give to the matter, I am of opinion, that the evidence offered by the plaintiff ought to have been admitted.

The fourth exception, is to the charge of the Court, and particularly to that part of it, whjch speaks of the supposed confirmation of the contract by the subsequent act of the defendant. In that respect, it appears to me, that the law was laid down very fairly and correctly. To make a confirmation of a contract in which a man has been defrauded, very strong facts must be shewn : and particularly, it must appear that those acts were done, with full knowledge of the truth. For, how can it be supposed, that a man meant to confirm, what was originally invalid, unless he was informed of the circumstances which rendered it invalid. This is the principle assumed by the President of the Court in his charge, and he left it to the jury to decide, whether the acts of the defendant were with' a knowledge of the misrepresentations of which he complained. On the whole of this case, l am of opinion, that the plaintiff in error, has made good his three first exceptions, and failed in his last. The judgment must therefore be reversed, and a v.enirefacias de nono awarded.

Judgment reversed, and a venire facias de novo awarded.  