
    John J. Ames v. The People’s Telegraph.
    Where evidence is received in the court of the first instance without objection, and no motion was made to strike it out, it cannot he rejected by the court, upon the ground that tlie witness disclosed the fact that the proof rested upon written orders and papers which were not: produced or called for.
    Where there are mutual accounts, a party who has accepted drafts drawn upon him hy the other party, has a right to be credited with the amount for which he has accepted, the drafts being at the time still outstanding.
    from the District Court of East Baton Rouge, Burk, J.
    
      J. M. Elam, for plaintiff.
    
      G. S. Lacey, for defendants,
    contended: It is contended that the amounts paid on Ames’ orders, and the several sums for which receipts were taken, cannot be allowed, because the orders and receipts were not produced upon the trial. The court will bear in mind, those items were clearly and conclusively established by Sheafe, without any objection to the reception of his evidence— without even a motion to strike the same out; hence, the plaintiff is bound by that testimony. In Huey v. Hinkgrave, 19 L. R. 482, this court held, that evidence taken down at the instance of plaintiff, cannot be stricken out upon the cross-examination, on the ground that it contradicted or went to explain a written contract. The motion to strike out came too late; the objection should be made when the testimony is offered. As to its effect, when once taken, the court has frequently held, that it will bind the parties, even in regard to the sale of real property. 1 N. S. 456. 4 L. R. 22, 64.
    It was also argued, in the court a quo, that the defendants cannot be allowed credit for the amount of Ames’ draft in favor of Pratt, accepted by defendants, ($175,) because the drafthad not been paid. The consequence of this position shows its absurdity. The defendants will be compelled to pay to Ames the full amount of his account, as though no acceptance had been made; and, at the maturity of the draft, will be obliged, under their acceptance, to take up the same; in other words, must be subjected to a double payment. It requires no argument to induce your honors to protect us from that position.
   The judgment of the Court was pronounced by

Rost, J.

The plaintiff sues the defendants for wages and monies advanced for their use.

The defendants admit the plaintiff’s account to the amount of $388 13, and claim the sum of $400 90 in reconvention. There was judgment in favor of the plaintiff for a portion of his claim, and the defendants appealed.

The witness Sheafe has testified that the whole amount of the demand in reconvention is correct; but the district court refused to allow several of the items because this witness when cross-examined disclosed the fact, that several of the items charged in the account rested on the evidence of the plaintiff’s written orders and letters, which he stated were in New Orleans. As the plaintiff did not object to the introduction of this evidence, the court erred in raising the objection for him. The plaintiff is bound by it; and we think that it proves the payments alleged. Huey v. Dinkgrave, 19 L. R. 482, and cases there cited.

The court refused to allow the amount of two drafts drawn by the plaintiff on the defendants, and accepted by them, which were outstanding at the time of the trial. In this, also, we think there is error. Whatever recourse the plaintiff may have hereafter against the defendants in case of non-payment of these drafts, it is clear that he has now no claim against them for the amount they have assumed to pay in discharge of his liabilities. His rights to that extent stand transferred to the holders of the drafts.

The account of the defendants contains an item of $20, which the witness Sheafe says was paid to the plaintiff by a third person. On the cross-examination he says, that he did not see it paid, and does not state from what source he derived his knowledge. That evidence is insufficient.

The claim in reconvention is proved to the amount of $380 90. This sum deducted from $388 13, leaves a balance of $7 23, for which the plaintiff must have judgment.

It is ordered that the judgment in this ease be reversed; and that there be judgment in favor of the plaintiff, and against the defendants, for seven dollars and twenty-three cents, With the costs of the district court. Those of this appeal to be paid by the plaintiff and appellee.  