
    Luther Cross v. B. W. Bartholomew.
    
      Bvidenoe. Memorandum-. Contract.
    
    
      A memorandum of a parol contract, made by one of the parties immediately after the contract was made, is not' of itself evidence, or evidenco in chief, but might be a circumstance tending to confirm1 the party in Ms testimony in respect to the contract, and for this purposo was proper to be read to the jury where the other party, the defendant, had introduced testimony tending to show that the plaintiff had: testified in respect to the same transaction ’ on a former occasion, bofore the grand jury, that the defendant deceived him, and did not testify to a contract as he claimed'and'testified to in this suit; it’ appearing that the party testified before the grand jury with the same memorandum before him. (Lapham v. Kelley, 35 Vt., 195.)
    General a-nd Special Assumpsit. Plea, the general- issue. Trial' by jury, and-verdict for the-plaintiff,.September term; 1867, Peck, J., presiding-.
    The plaintiff claimed-and’introduced; testimony tending to prove that the defendant, who ivas executor of one Smith, and- had charge of the settlement, etc;, of a-certain administration account of said Smith, on the-estate of one Day, which was unsettled at his, Smith’s, decease, made certain representations to the plaintiff,* who had a claim against Day’s estate; as-to what per cent, it would pay, and they finally agreed that he should pay the plaintiff eight per cent, on bis claim, -and take ; an assignment of - it, and. if the estate should-pay any more than eight per cent., the ■ defendant should pay it to the . plaintiff, -whatever'it might be. The. defendant’s evidence tended, to deny.this..agreement-in some.respects, and to vary it.
    The plaintiff in his testimony ■ produced a - memorandum-of-the ■contract in substance, as he.-testified, the agreement was,-and-testified that' he made the-memorandum -within three minutes - after the plaintiff -left the shop-of Wm. S. Smith, for whom . plaintiff'-was doing some writing, and where-the -contract-.was-made,-on the occasion of the making of the, contract, .and. that -he made -it on-a piece of bill paper,that -he -wasr-using;-that-he made the-memorandum as the contract .-was,-and immediately after-the-contract was made,-as-soon as the-defendant -left. '-There was,-evidence on the. part of the plaintiff .tending to show that-the defendant,-when the defendant represented-to. the plain tiff-what, the estate-of, Day would pay,-and procured the assignment, knew-it-was untrue,-and that, he knew-it would-.pay-just' what it .did afterwards pay, and that his representation was made intending to deceive-the-plaintiff, and that-the plaintiff .was ignorant of-what-Day’s-estate could pay; and on the part of the defense there was evidence to the, contrary. The particulars of-this testimony are not material to the questions reserved by-.-.the exceptions. The plaintiff claimed to recover -on the ground of fraudulent representations,, if the jury did not find -the contract as -the -plaintiff-claimed ,it to be — and -this , point -was submitted to the.-jury.
    :The defendant-introduced,as a-w-itness ¡one.Payne,: who testified that he.-was one of the-county grand jury when- the. plaintiff testified before-them in relation .to this transaction, and that the -plaintiff. there claimed that -the defendant, Bartholomew, deceived him, ■that lie-could-not s.ay-whether the -plaintiff testified that the defendant-lied-to him,-.or whether he said he cheated, or defrauded him, but that that was the idea, and that he did not testify on that occasion that the defendant promised to pay him any more than . the eight per cent., if Day’s estate paid more than that 5 and- that when the plaintiff testified before the grand jury, he produced a paper that he testified he made.-at the time..the..defendant bought the claim, and had it to refresh his memory when he testified. The witness, Payne, said he could not recollect whether the grand jury had the paper in their possession or not.
    To rebut this testimony of Payne, the plaintiff was called, and testified that he testified before the grand jury as he had testified on this-trial, and that he there testified with this same memorandum before him. The plaintiff then repeated what he did testify before the grand jury, which was the same in substance as his testimony heretofore stated. The plaintiff then produced the memorandum which he had referred to when he testified before on this trial, and said it was the same that he had before him and produced when he testified before the grand jury, and that he there testified according to it. The plaintiff’s counsel proposed to have the- memorandum read, to which the defendant’s counsel objected. The court decided that it was not of itself evidence, or evidence in chief, but if the jury believed it was made immediately after the contract was made, and that it was the same that Payne' had' referred to as being before the grand jury, it might be a circumstance tending to confirm the plaintiff in his testimony, and for' that purpose allowed it to be read ; to which defendant 'excepted. " ■
    After Payne had testified, and before the plaintiff was recalled as above' stated, and before the memorandum was offered to be read, the plaintiff called Mr. Heath, who was State’s attorney when the plaintiff testified before the grand jury, and he, Heath, testified that said memorandum produced on this trial was the same that the plaintiff had before him-when he testified before the grand jury, and that when the plaintiff testified there he left the memorandum with him, Heath, and that he kept it a few days, till they got through with it, and then handed it back to the plaintiff. Heath also testified to what the' plaintiff testified before the grand jury, which was the same in substance as the plaintiff’s testimony on this trial.
    
      Heaton & Reed for the defendant.
    
      Wing & Lund for the plaintiff.
   The opinion of the court was delivered by

Barrett, J.

We cannot reverse this judgment without overruling the decision in Lapham v. Kelley, 85 Yt., 195, on the very • point made by the exceptions in this case. That we are not disposed to do at present, and so the judgment is affirmed.  