
    [Chambersburg,
    October 31, 1827.]
    REICHART against BEIDLEMAN.
    IN ERROR.
    In debt on a sealed note for a certain sutn, the plaintiff is not permitted to give in evidence an agreement by the defendant, showing that the note was to be drawn payable with interest, and that payments made on account were appropriated to the interest.
    For that purpose, the declaration should be for the interest also.
    If the defendant examines a witness, the plaintiff cannot by cross-examination elicit such agreement, though it made a part of a conversation of which the witness had given evidence.
    Error to the Court of Common Pleas of Cumberland county. The plaintiff in error was plaintiff below, and brpught this action of debt on a sealed note drawn by the defendant in favour of the plaintiff, dated the 21st of January, 1819, for three hundred and thirty-eight dollars and thirty-three cents, payable on the 1st of May, 1822. Plea payment with leave, &c. The plaintiff read in evidence the note, on which was endorsed, a receipt for two hundred dollars, on the 26th of Jlpril, 1822. The plaintiff then offered in evidence articles of agreement between the parties, dated the 21st of January, 1819, the execution of which was admitted, to show that interest was to be paid on the instalments, for one of which the note in question was given. And called a witness to prove the frequent acknowledgments of the defendant that he was to pay interest, and promises to pay the same. The defendant objected.
    
      By the Court. — The suit is on the note, and the plaintiff must recover according to his evidence of debt. The agreement was no part of the original cause of action; nor the subject of an action ©f debt. Both the offers are rejected.
    To this opinion the plaintiff excepted.
    The article was for the sale of thirty-three acres of land, by the plaintiff to the defendant, “ at forty dollars per acre, to be paid in the following manner: two hundred and twenty-five dollars on the 1st of May next; and the balance in three equal annual payments, with interest from the date of this article,” in a penalty of one thousand dollars.
    The defendant offered to prove that the plaintiff admitted in the presence of a witness, (the justice before whom the suit was tried,) •that the moneys referred to in certain papers produced, were paid by Beidleman, in the city of Philadelphia, by the plaintiff’s authority; and that he was to have a credit for the same on the note on which this suit was brought.
    To which the plaintiff’s counsel objected, because, as was admitted, Mr. Hamil was alive and in this county, and Wovrals and 
      Richardson were alive and in Philadelphia. And, if any admissions were made, they were made before the justice in the trial of the cause, along with other admissions and things which are not stated.
    Which objections were overruled by the court, the evidence ad-mitted, and a bill of exceptions sealed at the plaintiff’s request.
    The defendant then called Samuel Redett, sen., Esq., who stated that this note was put into his hands by Reichart for collection. These papers, (receipts,) were produced by the defendant along with the article of agreement. The moneys mentioned in them were admitted by the plaintiff to be a payment on the note in question in favour of the defendant.
    The plaintiff’s counsel, in the cross-examination, asked the witness to state all that was said by the plaintiff, at the same time and as parts of the same conversation, admitting that the note was to bear interest,.and the defendant’s willingness-to pay it. To which the defendant objected, and requested to read the papers referred to, before the plaintiff’s counsel proceeded with the cross-examination of the'witness, as above stated. To this the plaintiff objected; but the court allowed it, and sealed another bill of exceptions at the plaintiff ’s request.
    The papers were-then read, viz:—
    1822, Aug. 6th,. Receipt, Worrals and Richardson, for $70,00
    
      Sept. 18th, Ditto, 10,00
    
      Sept. 19th, Ditto, 20,28
    
      Nov. 2nd, Samuel Park, 70,00
    The plaintiff renewed the question to the Witness before stated. To which the defendant’s counsel objected. The court sustained the objection, and rejected the evidence, and sealed another bill of exceptions at the request of the plaintiff. •
    The plaintiff offered in evidence the article of agreement before offered, and which had been produced before the, justice by the defendant along with the papers read. The defendant objected to its admission. The court rejected it, and sealed another bill at the request of the plaintiff^ counsel.
    
      Alexander, forthe plaintiff in error.
    1. The plaintiff claimed the right to appropriate payments already made, to interest. Interest was left out by mistake, and the articles were evidence to reform the note. 8 Johns. 149. 1 Serg & Rawle, 465. 2 Johns. 596. 4 Johns. Ch. 148. 2 Atk. 203. 2 Crunch, 419. 2 Johns. Ch. 274. 2 Dall. 70. 4 Cranch, 320. 9 Cranch, 241.
    2. We had a right to cross-examine-as to the admission. It might have been made with a view to a compromise; in which case, the receipts would not be evidence. - The right to appropriate was with the plaintiff Harker v. Conrad, 13 Serg. & Rawle.
    
      Ramsey and Carothers. —The article was irrelevant.. It had -no perceptible connexion with the note. Phillips’s Evid. 423. The note cannot be enlarged on evidence. They should have declared on it as they meant to recover on it. Jordan v. Cooper, 3 Serg. & Rawle, 564. Clark v. M‘Anulty, 3 Serg. & Rawle, 374.
    
    
      Alexander, in reply,
    cited MiCutcheon v. Nigh, 10 Serg. & Rawle, 344, as the very counterpart of the case under consideration.
   The opinion of the court was delivered by

Gibson, C. J.

If the interest were omitted by mistake, chancery would no doubt set the matter right; and having no such court, our practice is to consider the instrument as already reformed. But in that view of the case, the plaintiff should have declared on his note according to what may be termed its equitable effect; as in Jordan v. Cooper, 3 Serg. & Rawle, 564. To avoid the force of this, the plaintiff having gone for the Amount of the note as actually drawn, claims the right only to appropriate out of payments already made, sufficient to answer the interest due in equity; and thus to relieve the note as set out in the declaration, from what would otherwise be a direct payment. But.that would, in effect, enable him to recover what he had not sued for. He may waive his right to have the mistake corrected, but then it ought to be in good faith and to everyintent; for to permit him to sue on a part of his demand, and hold the rest in reserve against partial payments, would enable him to take his antagonist by surprise. The contract of the drawer of a promissory note is entire, and cannot be split up to answer distinct purposes. Where a part has been omitted, the payee may with us declare specially or Waive the right of having the error corrected: but he cannot take a middle course; for if he state his cause of action to be one thing; he will be estopped by the record from affirming it to be another. I therefore perceive no error in the rejection of the evidence.

The other point I take to be extremely clear. In the guise of á cross-examination, the plaintiff attempted to introduce a direct.examinationof the witness to facts which were altogether foreign to the matter of his examination in chief, and which would have been incompetent, coming from the mouths of his own witnesses. It was, therefore, inadmissible.

Huston, J.

The plaintiff having read his note, offered in evidence an article of agreement, from which he alleged, it appeared the note ought to have been drawn payable with interest,, and this was offered to recover interest. This was rejected on the authority of Jordan v. Cooper, 3 Serg. Rawle, 564. This forms the first bill of exceptions.

The second I pass over.

The defendant offered to prove payment of money in Philadelphia for the plaintiff’s use, and to prove that the plaintiff had, since the payment in Philadelphia by the defendant, agreed that the sums there paid, should he credited on this note. The witnesses produced the receipts for the payment in Philadelphia, and said the plaintiff agreed that these should be credited on this noté in question. The plaintiff’s counsel asked the .witness to state all that was .said by the plaintiff at the same time, as a part of the same conversation, and by the defendant, admitting that the note was to bear interest, and the defendant’s willingness to pay interest. This was objected to, and the court decided it should not be answered. The matter in issue was small, and I shall be as unwilling to reverse for small matters not affecting the merits, as' any person can be: but it seems to me, a principle was overlooked in the hurry of a trial of the utmost consequence. This right to cross-examine is invaluable; without it, trials and courts are not worth having. But, when a witness is called to prove what a party in the cause said, and states a particular sentence, and does not state what preceded or followed, when he states what one party agreed to, but does not, and is not permitted to state, oh what condition he so agréed, what was the consideration of the agreement, nor what the other party said and agreed to; the result may probably be, perhaps certainly must be, injustice in every casé.

It is said this would let the plaintiff in to prove what the court had just rejected! Be it so. It is no unusual thing that a party offers testimony which is properly rejected. His opponent, however, may introduce something which will make that very evidence, so rejected, strictly legal.. It is alleged here, that the defendant first agreed that the interest was payable, and that in consideration of such admission, the. plaintiff agreed that payment in Philadelphia should be allowed. If so, the whole ought to have been received, or none of it.

•Admitting the case of Jordan v. Cooper, — and I am not .disposed to deny it,^ — it is a narrow point. It is this: where the day of performance is put directly in issue, you cannot prove performance on another day. This is the point decided: in discussing it much is written and read; but the case does not decide, and no case decides, that every sentence used by a judge in reasoning on any point, is law.; the conclusion may be good law.

The case in 10 Serg. & Rawle, 344, is since Jordan v. Cooper, and does not contradict it: it settles-what has long been practised, that when a defendant, under our general plea, gives evidence of something which might bar the plaintiff’s recovery, the plaintiff in reply to it, may give evidence to show that it ought not to bar or affect his claim. That case seems fully to govern this, and to decide that though the articles of agreement were not evidence in the first instance, yet they ought to have been received after the defendant’s evidence was given.

It does not enable him to recover what is not sued for.

Judgment affirmed.  