
    Horace F. Burroughs, Appellant, v. Adolph D. Strauss and Others, Respondents.
    
      Witness — evidence that he has been indicted is not competent to discredit him—payment of a balance alleged to be due may be shown under a general denial.
    
    Evidence that a witness has been indicted is not competent to discredit him. Semble, that where a complaint alleges a balance due, the defendants may show-payment of such balance under a general denial.
    Appeal by the plaintiff, Horace F. Burroughs, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the cleric of the county of Kings on the 11th day of March, 1898, upon the report of a referee dismissing the complaint upon the merits.
    
      
      James M. Hunt, for the appellant.
    
      Charles E. Rushmore, for the respondents.
   Hirschberg, J.:

The plaintiff sues to recover an alleged balance due of $5,311.08, on sales of lumber by his son Horace F. Burroughs, Jr., to the defendants during the years 1887 to 1891 inclusive, the claim being assigned to him. The defense, so far as is material to the appeal, is payment by the defendants to the plaintiff’s, assignor before the assignment, but at the close of the case the referee permitted an amendment to the answer to conform to the proof, alleging that before such assignment the defendants and plaintiff’s assignor had mutually settled and adjusted their accounts. The appellant asks the court to make a thorough examination of the evidence, showing the fact of settlement and payment, and such examination has been made.

The usual course of dealings between Burroughs, Jr., and the defendants was for the former to deliver the lumber on shipboard as directed by the latter each sale, and to send to the defendants an invoice with each shipping receipt, and thereupon the bill would become due and payable with an agreed discount if paid within a time also agreed upon. The defendants made payments from time to time, sometimes paying invoices in full specifically, sometimes making general payments on account, and occasionally demanding and receiving allowances for alleged shortages and deficiencies in prior shipments. Some claims were made which were not allowed at the time, but were held in abeyance until the accounts between the defendants and Burroughs, Jr., were finally settled, adjusted and balanced on the 13th day of May, 1891.

It appears that neither Burroughs, Jr., nor the defendants kept accurate accounts of the sales of lumber. On the trial, the plaintiff put in evidence an account made up from the press copy book of invoices kept by Burroughs, Jr., showing something like 250 sales or shipments to or for the defendants during the years covered by the dealings, commencing with an invoice of January 6, 1887, and ending on May 15, 1891, amounting to the sum of $187,185.06. As against this total, were credited various payments of cash which Burroughs, Jr., testified were all he had received from the defendants, and which amounted to the sum of $181,873.98, leaving the difference $5,311.08, the amount sued for. .This account, together with the invoices and receipts, constitutes substantially the proof supporting the plaintiff’s claim to recover the balance alleged to be due and owing.

The general rule on the part of the defendants appears to have been to settle the accounts weekly or within ten days, and it was admitted by Burroughs, Jr., that in quite a number of instances the defendants informed him that they were obliged to make allowances to their West Indian correspondents, and that he made those allowances good. He did so by permitting the defendants to keep the necessary sum of money out of their settlements with him. In the account above referred to, and which is the chief exhibit or basis of the plaintiff’s claim, none of these allowances is credited. He admitted that his ledger contained entries of some of these amounts so kept out or deducted, but testified that he did not know whether it contained tliem all. That the account so put in evidence by the plaintiff to establish his claim was not an account made up so as to honestly and accurately reflect or convey the dealings between his assignor and the defendants was, therefore, practically conceded.. The extent of the deviation appears, for example, at about the end of the first year’s dealings, when,-on the 16th of February, 1888, Burroughs, Jr., gave the defendants a receipt for $3,503.28 “ in full of °/c to date.” The account in evidence, however, at that date and after crediting that payment, shows a debit balance of $1,425.19, and it may be said in a general way that about the same proportion in excess of credits runs through the account to its termination.

On the part of the defendants testimony was given tending to show that the shipments of lumber were not all sales by Burroughs, Jr., to the defendants, but that three cargoes in the spring of 1891, viz., those shipped by the vessels Hiawatha, Teneriffe and J. F. Merry, respectively, were consignments on Burroughs’ account. The defendants further proved by satisfactory evidence that on the 2d day of March, 1891, after several hours of negotiation with Burroughs, Jr., the amount of the existing and unsettled claims on the part of the defendants for shortage, overcharges, losses, etc., was mutually adjusted at the sum of $1,775.94, and that a statement in writing of the items was made up and delivered to Burroughs, Jr., a copy being in evidence. They further proved by equally satisfactory evidence that on or about the 13th day of May, 1891, an account was made up of the unsettled dealings between the parties at that date exclusive of the consigned cargoes, and that this account, after deducting the allowances of $1,775.94, left a balance due to Burroughs, Jr., of $1,005.85, which balance, together with an item of $10, also owing to Burroughs, Jr., was paid to him by defendants’ check for $1,015.85 on May 15, 1891. This account runs only from October 26, 1889, to the date of settlement, and a copy is in evidence. It is to be noted in this connection that the lumberyard of Burroughs, Jr., was destroyed by fire on May 6, 1891, and that the last shipment noted on the plaintiff’s account on which the claim for a balance due is made is of a sale under date of May 15, 1891. It may be regarded, therefore, as conceded that the dealings ended with this adjustment and payment' of the balance due.

Burroughs, Jr., denied these adjustments and settlements. He died during one of the adjournments of the trial before the referee. After his death, and as evidence that the accounts between the parties were open and unsettled after May, 1891, the plaintiff offered in evidence an account dated June 12, 1891, made out against the defendants and in favor of Burroughs, Jr., showing an apparent balance due of $4,171.87. This exhibit contains corrections in pencil and in red ink, in the handwriting of defendants’ bookkeeper, and, to my mind, very strongly corroborates the defendants’ claim. The inference, on its face and from its production by the plaintiff, is that it was sent by Burroughs, Jr., to the defendants and by them returned with their corrections to him, and then retained by him as corrected and as satisfactory. The corrections referred to are two charges amounting to $570.78, which were paid by check in January, 1890, and a charge for $824.93 which was omitted, the difference being $254.15, to be added to the debits. On the other side is an omission of a payment January 6, 1891, of $1,000, and not noted but apparent, an omission of $10 in the check given for settlement on May 15, 1891. The difference between the $1,010 of omitted credits and the $254.15 of omitted charges, .viz., $755.85, reduces the balance shown on the exhibit of $4,171.87 to the sum of $3,416.02. But this exhibit contains the consignments and the advancements on account of them, the difference amounting to $1,640.38. Deducting this item from the last-named balance, viz., $3,416.02, leaves the sum of $1,775.64 as the real balance presented by the exhibit in question, or within thirty cents of the amount, $1,775.94, at which the defendants claimed their allowances were adjusted on the 2d day of March, 1891.

On the 26tli day of June, 1891, the ledger account of Burroughs, Jr., against the defendants was closed, and the consignment balance above shown, viz., $1,640.38, together with a disputed item of $4 which the defendants claim has been paid, was carried to his new ledger, thus leaving nothing open in his ledger account against the defendants except a charge for $1,644.38, for the $4 item and the three cargoes claimed to have been consigned. This balance fully establishes the truth of the defendants’ claim that the three cargoes in question were consignments and not absolute sales, but the defendants also put in evidence an assignment from Burroughs, Jr., to the plaintiff, dated September 16, 1891, purporting to assign all claims against the defendants, which assignment is in the handwriting of the bookkeeper of Burroughs, Jr., and in which the cargoes of the Hiawatha, the Teneriffe and the J. F. Merry are each marked consignment.”

The referee found that the parties arrived at a settlement and adjustment of their accounts on May 13, 1891, and that the amount then found due to the plaintiff’s assignor was fully paid. From the extended statement herein made of the nature of the proof on that question it must be apparent that any other finding would have been against the weight of evidence. He also found that the advances on the consigned cargoes largely exceeded the final receipts, and that fact is not contested on this appeal.

The case, therefore, presents this state of facts: The plaintiff produced a statement exhibiting alleged sales on the one side and payments on the other, which statement, however, was discredited by the admission that there were offsets to which the defendants were entitled but which were not credited. The balance shown by this incomplete account was $5,311.08, the amount sued for. The defendants proved that at about the time of the termination of the dealings between the parties an adjustment and settlement of their accounts was had, by which the sum of $1,775.94 was deducted or allowed to them by mutual consent, and that the balance then remaining was paid in full. Shortly after this payment was made, an account was presented on behalf of plaintiff which was immediately corrected by the defendants and returned, and which as so corrected and returned was not only retained on plaintiff’s behalf, but the books of the plaintiff’s assignor were at once corrected and arranged to correspond therewith. These corrections demonstrated that the defendants had paid everything beyond the $1,775.94 of agreed deductions, excepting that the sum of $1,640.38 was still outstanding by reason of certain consigned cargoes. And the account of defendants was closed on the books of the plaintiff’s assignor, within two weeks of the date of the last-named account, and the balance representing the consigned cargoes alone was then carried to a new ledger as the only open and unsettled account between the parties. It would seem that the referee was compelled on this state of facts to conclude that the parties had arrived at an amicable and satisfactory adjustment of their dealings by way of sale and payment, and that the amount found due had been fully paid. The amendment to the answer was unnecessary. The complaint claims a balance due, and as against such a complaint the defendants would have been entitled to show payment under a general denial. (Quin v. Lloyd, 41 N. Y. 349.) But the answer alleges payment as an affirmative defense, and the defendants were entitled, without any amendment of the answer, to show the actual balance and its payment in full.

It remains only to consider the rulings on the admission and rejection of evidence. Hone of them deserves serious consideration, excepting the allowance of the question to Burroughs, Jr., on cross-examination, as to whether he was under indictment for forgery. It was clearly not competent to discredit him by showing that he had been indicted. (Van Bokkelen v. Berdell, 130 N. Y. 141.) There is nothing in the record, however, nor in the circumstance to indicate that the answer of the witness, which was exculpatory in its nature, had any prejudicial effect upon the learned referee. Had the trial been before a jury a different disposition of the case on appeal might well be required. But under the circumstances of this case, the fact that its decision rested upon an adoption of the books and documents of the witness sought to be discredited, the fact that he, the chief witness of the plaintiff, has since died, and that, therefore, the claim must depend upon the case as now made up, and the absence of any indication that the decision was in any way affected by the improper evidence, the judgment should not be disturbed.

I recommend affirmance.

All concurred.

Judgment affirmed, with costs.  