
    Lewis v. Andrews.
    
      (Supreme Court, General Term, First Department.
    
    July 9, 1889.)
    1. Tender—At Trial—Worthless Certificate.
    Plaintiff gave defendant $10,000, as he alleged, as a deposit to be used in the promotion of a cable railroad, but not to be so used until the franchises should be confirmed, and to be returned to plaintiff on demand, should he at any time wish to withdraw it. In an action to recover it back, the defense was that the payment was in fact a subscription to the bonds of the railroad company, and that, as plaintiff knew, the money was to go to one S., a promotor of the enterprise, by whom the
    
      bonds were to be furnished. The evidence showed that after plaintiff’s check for the $10,000 had been deposited a certificate of a loan and trust company was sent to plaintiff, acknowledging the receipt of the money “for account of [S.,j attorney; ” and agreeing to deliver to plaintiff $20,000 worth of first mortgage bonds, and a like amount of second mortgage income bonds, of the cable railroad company. It did not appear that this certificate had any value. Hold, that the court properly ruled that an offer to return the certificate, made for the first time at the trial, was sufficient.
    3. Evidence—Admissibility.
    Testimony as to the various proceedings of the cable railroad company was admissible to throw light upon the interviews and correspondence between the parties.
    3. Same—Hearsay.
    Evidence as to newspaper notoriety of the fact that S. was connected with the cable railroad enterprise was properly excluded, as it would not have tended to show that plaintiff’s contract was with S., rather than with defendant.
    4. Same—Harmless Error.
    Defendant having testified on direct examination that prior to the suit money advanced by third persons, in aid of the enterprise, had been returned to them by him, he was not injured by the testimony of a witness on behalf of plaintiff, that such witness had received back the money which he had subscribed.
    6. Same—Letters—Verbal Admissions.
    Defendant requested the court to charge that “ the letters and written correspondence between the parties, shortly after the contract between them was made, are of more weight in deciding what the contract was than evidence as to verbal admissions at a later date. ” The court answered: “I will not charge that they are of more weight,'but I will charge that these letters, as I said before, are to be taken into consideration, and in connection with the oral testimony, and their indications as to what the understanding of the contract was by the writers of the letters. ” Held no error.
    Appeal from circuit court, Hew York county.
    Action by John V. Lewis against Wallace O. Andrews, to recover the sum of $10,000, money had and received. Verdict and judgment for plaintiff, and defendant appeals.
    Argued before Van Brunt, P. J., and Bartlett and Macomber, JJ.
    
      J. W. Hawes, {Everett P. Wheeler, of counsel,) for appellant. Vanderpoel, Green <6 Cuming, (Almon Goodwin and Edgar M. Johnson, of counsel,) for respondent.
   Bartlett, J

In the autumn of 1885 the plaintiff, by his check dated on the 3d day of September in that year, paid $10,000 to the defendant. He alleges that the defendant received and accepted this money as a deposit, to be used in the promotion and construction of a cable railroad in the city of Hew York, but agreed that none of it should thus be employed until the board of aldermen and the legislature had confirmed the franchises sought for such road; and the plaintiff further claims that the defendant agreed to return the money on demand, but without interest, if he should at any time desire to withdraw it. Aftey it became evident that the franchises could not be obtained, the plaintiff did desire a return of the $10,000, and, being unable to procure it, he instituted this suit. The defense is that the payment was really a subscription to the bonds of the Hew York Cable Railway Company by the plaintiff, who knew that the money was to go to Charles P. Shaw, a promoter of the enterprise, by whom the bonds were to be furnished, and by whom the money would be returned if not already expended, should anything occur to prevent the enterprise from going on. The proof as to the true nature of the transaction consisted of the oral testimony of the parties, and others, and of the correspondence between the plaintiff and defendant. The contents of the plai ntiff ’ s*l ett ers tended strongly to sustain the position of the defense. But, notwithstanding the cogency of this proof, the evidence was not so preponderating in favor of the defendant as to require the direction of a verdict or the granting of a new trial on the ground that the verdict for the plaintiff was against the evidence. Aside from the claim that the verdict was against the weight of evidence, the defendant alleges error in the refusal of the trial court to charge certain of his requests, and in certain rulings as to the admission and exclusion of testimony.

The learned judge declined to charge the defendant’s fifth request, which was in these words: “Fifth. The letters and written correspondence between the two parties shortly after the contract between them was made are of more weight in deciding what the contract was than evidence as to verbal admissions at a later date.” As to this proposition, the court said: “I will not charge that they are of more weight, but I will charge that these letters, as I said before, are to be taken into consideration, and in connection with the oral testimony, and their indications as to what the understanding of the contract was by the writers of the letters.” The defendant’s exception to the refusal of the trial judge to instruct the jury precisely as requested cannot be sustained. Undoubtedly it is true, as an abstract proposition, that, other things being equal, the written declaration of parties, made at or about the time of a transaction, are a more trustworthy'guide to the true character of that transaction than the subsequent oral statements of the same persons; but, in every jury case in which there is a conflict between the documentary and the oral proof, it is for the jury to say, taking all the circumstances into consideration, whether they will give most weight to that which is written or to that which is spoken, and the court cannot properly direct them that in that particular case the written proofs shall control.

After the $10,000 check of the plaintiff had been deposited by the defendant, a certificate of the American Loan & Trust Company was sent to the plaintiff, which acknowledged *he receipt from him of $10,000 “for account of Charles P. Shaw, attorney,” for which sum the American Loan & Trust Company, out of certain bonds delivered to it in trust, thereby agreed to deliver to the plaintiff $20,000 in the first mortgage bonds, and a like amount in the second mortgage income bonds, of the Hew York Cable Bailway Company. By his eighth request the defendant asked the court to charge that, if the jury found that this certificate was not tendered to the defendant before the suit was brought, the verdict should be for the defendant. The court refused to charge further on this subject than had already been charged, having previously left it to the jury to say whether or not the certificate was offered back before the trial, and having instructed the jury, further, that if the certificate wus not a thing of value, then it was enough to offer to return it at the trial. Under the circumstances of the case, we think it was sufficient to offer to restore the certificate to the defendant at the trial, as was actually done. There was no evidence tending to show that the certificate had any value, and the proof as to the failure of the Hew York Cable Bailway Company to secure any franchise indicated pretty clearly that it was worthless. But, apart from this consideration, a return of the certificate was important only to secure the defendant against an acquisition of the bonds therein mentioned by the plaintiff or some transferee of the plaintiff; and he was fully protected against any such danger by its production in court on the trial, and the offer to return it which was then made.

A gentleman named Macaulay, who was called as a witness for the plaintiff in rebuttal, was allowed to testify, against objection and exception in behalf of tile defendant, that a portion of certain moneys which he had subscribed to the cable railway enterprise had been returned to him. It is argued that the admission of this testimony was erroneous, because the fact that the defendant had made concessions to other persons in reference to transactions similar to that in suit had no tendency to prove that his contract with the plaintiff involved an obligation to return on demand the money which he had received from the plaintiff. This view would be correct, and the evidence would have been inadmissible, if the defendant himself had not testified upon the same subject, on his direct examination. “ Within a few days after the money was paid in,” he said, “there were one or two subscribers who con-eluded to withdraw their money from Mr. Shaw. I know I advised Mr. Shaw to pay it promptly. I did, not myself pay it back. * * * I think there had been some decision adverse,—something reported. They seemed discouraged, and that money was paid back. * * * I got the money from Mr. Shaw, and paid that back myself,—eighty per cent. ” The 'defendant, having given this testimony himself, could not possibly have been injured by anything to which Macaulay testified. It was proper to receive the evidence, which was admitted as to the various proceedings of the New York Cable Bailway Company, as throwing light upon the interviews and correspondence between the parties to the action. The trial court was also right in declining to admit evidence as to the newspaper notoriety of the fact that Mr. Charles P, Shaw was connected with the cable railroad enterprise. Even if established,; this fact would not have tended to show that the contract of the plaintiff was with Mr. Shaw rather than with the defendant. The judgment appealed from should be affirmed, with costs. All concur.  