
    Perry G. Tanner, Respondent, v. Anson C. Parshall, Appellant.
    ' In an action to recover the price, upon the alleged sale of a horse, where the defense was a denial of the purchase, the plaintiff offered to prove that, directly after the transaction, he made an entry of the sale,, in his book of account, which he subsequently exhibited to the defendant, who admitted its accuracy.
    
      Held, that the testimony was competent as evidence to prove the fact of ' sale.
    This is an appeal by the defendant from a judgment of the Supreme Court, rendered in the sixth district, in favor of the plaintiff. The action was brought to recover the purchase price of a horse alleged to have been sold and delivered to the defendant in September, 1856, and came on for a second trial 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 the 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 account, charging the 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 is, whether this evidence was properly admitted. There are some other questions arising upon the admission and rejection of evidence.
    
      
      John H. Reynolds, for the appellant. ■
    
      L. J. Burdett, for the respondent.
   Hunt, J.

This ease was eminently one for the jury. We have nothing to do with their decision. We accept it as the correct determination of the disputed facts before them. The legal proposition before us is quite simple. 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 gestee. Hor are we to decide-whether the entry alone would have.been competent, evidence. Here the offer to read the entry was accompanied by the offer also to prove that the entry was subsequently read to the defendant, and that he admitted its correctness. That a statement by the plaintiff to the defendant, whether verbal or written, charging the latter with the purchase of a horse at the agreed price of $500, which statement was then assented to by the defendant, is competent evidence against the latter, would seem to be too plain a proposition for discussion. 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 same evidence, and is to be construed 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, this evidence would have been material. So, if they had been inquiring 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 this instruction to the jury, neither was there any error in the instruction that if the defendant heard the remark, that the plaintiff’s daughter testified that her father made to her, that “he had sold Billy,” and did not deny it, that it was competent evidence. The presence of the parties there, the taking away of the horse by the defendant, would justify the jury in applying this remark to the horse in question.

Judgment should be affirmed.

All the judges concurring, except Gboveb, J.,

Judgment affirmed.  