
    THOMAS KENWORTHY, Respondent, v. JOHN F. PHILLIPS, Appellant.
    
      Decided December 1, 1884.
    
      Circumstantial evidence—Facts tearing on the main issue—Evidence as to, admissible.
    
    In an action on an account stated, there being conflicting evidence as to an express promise to pay, the facts that a large proportion of the account, as alleged to have been settled, had been, before the alleged settlement paid, and on the other hand, that since the settlement, defendant had expressed in a letter an inability to pay and a willingness to “settle if ho could ” may jrroperly be considered by the jury, as bearing on the issue of an express promise, as also on that of an implied one; consequently evidence bearing on the existence or non-existence of said facts is admissible.
    Before Sedgwick, Ch. J., Van Vorst and Freedman, JJ.
    Appeal by defendant from judgment against him entered on verdict of jury and from order denying motion for new trial made upon judge’s minutes.
    The facts sufficiently appear in the opinion.
    
      
      James M. Hunt,
    
    attorney, and of counsel for appellant, on the points decided, argued :—The judgment should be reversed on account of error, to which exception was taken, in the admission and exclusion of evidence.
    I. The evidence excluded tended to show that within two months previous to the time the account was sent, an item, amounting to more than one-half the balance claimed, was paid. This was a circumstance calculated to rebut the reference that the defendant consented to the balance claimed. This evidence was proper (Quincy v. White, 68 N. Y. 370 ; Manning v. Winter, 7 Hun, 482; Guerny v. Renford, 63 N. Y. 633; Lockwood v. Thorne, 18 N. Y. 29).
    Again, as the complaint alleged non-payment, and as in plaintiff’s testimony evidence had been given in this hire, this evidence should have been admitted (Knapp v. Roche, 94 N. Y. 329). In Clifford v. Dam (91 N. Y. 55), Ch. J. Church, at page 57 says, “ Whatever the plaintiff is required to prove to establish his cause of action, the defendant may disprove under a general denial—this is the general rule. ” The precise question was decided in Thomas v. Hawkes (8 Mee. & W. 140), where the Court of Exchequer held, that under the general issue the defendant could show that the account did not show him to be indebted, because it was not correct; and in Bouslong v. Garret (39 Ind. 340), where it was held that the stating of an account is not conclusive upon the parties, and that consequently errors therein may be shown and corrected under the general denial.
    II. The letter of defendant should not have been admitted in evidence over defendant’s objection. It requires little argument to show that a man financially embarrassed, as the defendant then was, would ordinarily reply to an attorney’s letter requesting settlement of a claim, just as defendant did reply. There was no admission there, and to take an extreme view, there can be construed therefrom no more than an admission of some indebtedness. It is fundamental that an admission of a smaller indebtedness, or even a promise to pay a less amount, if not accepted is no evidence against a defendant for a larger sum on an account stated. (See citations in vol. "VI. Jacob’s Fisher’s Digest, page 9193.) That the verdict was rendered on this letter the judge’s charge plainly shows.
    
      MacFarland, Reynolds & Harrison, attorneys, and Robert F. Harrison,
    
    of counsel for respondent, on the points decided, argued :—I. The answer alleges no facts which would warrant the re-opening of the account, and none of the testimony, given or offered, tends to show any such facts. An account stated can only be opened when the party objecting shows clearly that he has been misled by fraud, mistake or manifest error (Harley v. Eleventh Ward Nat. Bank, 76 N. Y. 618). The defendant has not alleged in his answer any of the facts which would enable the court to afford affirmative relief by correcting the account. Such relief is only given in equity upon specific allegations, in a plain case, and sparingly (1 Story’s Eq. Jur. § 523). By resorting to the general denial he has put in issue only the fact whether the account was stated or not.
    II. The trial judge committed no error in sustaining the objections to admissions of testimony. There being no allegation in the answer, of fraud or mistake, questions as to the correctness of items in the account, could not but be immaterial and inadmissible.
   By the Court.

Sedgwick, Ch. J.

The action was upon an account stated, as claimed by the complaint. The plaintiff relied upon it being proven that an account as to dealing between the parties had been sent to the defendant, and the latter had retained it, without objection, for such a length of time that it was a question for the jury, as to whether he had not assented to and impliedly promised to pay it, and also that the defendant had expressly promised to pay it. The defendant, as a witness, denied that he had made the express promise. He also relied upon the circumstances of the case to rebut a presumption or to prevent an inference, that he had tacitly assented to the correctness of the account. He, competently in form, asked questions tending to show that one item, set out in the account, which was the ground of the account stated and which was nearly one-half of the whole account, had been paid. These questions were excluded. So far as the implication of assent or promise, from retention of the account without objection is concerned, it seems to me, that the question tended to call for facts which the jury might consider, as to the probability of a man assenting to an account, a great part of which had been paid. The same is true as to the express promise on which the plaintiff in part relied. The defendant denied that he made it, and the jury might be aided in determining the credibility of the witnesses, after being satisfied that one half of the account had been paid.

On the other hand, and in respect of the same points, the letter of Lockwood & Co., saying that they had for collection a claim amounting to $408.66, assigned to the plaintiff, and with the defendant’s memorandum upon it, his answer : “I am utterly without the ability to pay the above, or any part of it, I would gladly settle if I could,” properly went to the jury, for them to say if the defendant by his memorandum admitted that he owed the amount, and to be considered as a circumstance relevant to the issue of implied or express promise.

The existence or non-existence of a fact, as to which there is a contradiction of testimony, may be shown, by circumstantial evidence, especially where the question refers to an implication from existing facts.

The refusal to dismiss the complaint was not erroneous. There were facts proven upon which the jury was to pass.

For the reasons first given, the judgment should be reversed, and a new trial ordered, with costs, to abide the event. Order denying motion for new trial reversed.

Tan Vorst and Freedman, JJ., concurred.  