
    Charlotte A. Fisk, Administratrix, etc., et al., Respondents, v. Henry C. Fisk, Appellant.
    (Argued February 8, 1875;
    decided February 26, 1875.)
    This action was brought upon two instruments signed by defendant, found by plaintiffs among the assets of their testator. One was the acknowledgment of the receipt of $1,000, to be returned when called for; the other was as follows:
    “ $655.
    “ Due Thomas J. Fisk, on demand, for value received, $655.
    “ H. C. FISK.”
    Defendant claimed, and gave evidence tending to show that he paid upon the receipt, $345, and gave the due bill for the balance, under the agreement that the receipt was to be destroyed, and that he subsequently paid the due bill in full. Plaintiffs gave evidence conflicting with this; they also offered in evidence a letter from defendant to their testator containing this clause: “It was quite a mistake in handing you forty-five dollars, yesterday, instead of twenty-five dollars. Please give Delia twenty-five dollars, and the twenty dollars you can keep,"and will take that amount from your package in case I will require it.” This was objected to, and received under objection. The transaction referred to in the letter, it was conceded, had no connection with the payments claimed to have been made by defendant. Plaintiffs claimed it proved a payment of twenty dollars, in addition to the $345 claimed by defendant, and so tended to destroy defendant’s theory that the due bill was given for the balance unpaid on the receipt. The court was requested by defendant’s counsel to charge that there was no evidence that the twenty dollars mentioned in the letter was any payment upon the receipt in any way, or had any thing to do with it. He replied: “It was for the jury to say;" there is twenty dollars which has not been accounted for.” Held (Folqer, J., dissenting), that the reception of the evidence, the refusal of the court to charge, and his statement that the twenty dollars were to be accounted for, were errors; that the letter did not prove the payment of twenty dollars, and there was no valid ground for claiming that it should have been applied, in any way, upon the receipt.
    
      Geo. F. Danforth for the appellant.
    
      W. F. Cogswell for the respondents.
   Miller, J.,

reads for reversal and new trial.

Church Ch. J., Allen and Grover, JJ., concur; Folger, J., dissents; Rapallo and Andrews, JJ., do not vote.

Judgment reversed.  