Majority
p. 440Kelsey vs. Bush & Viele.
Headnote
A party whose admissions or confessions are resorted to as evidence against him, has, in general, a right to insist that the whole shall be taken together; but the part called out by him should relate to the point or fact enquired into on the other side. And see note (a.)If a part of the confession goes to discharge the party making it and is highly improbable, or there be evidence aliunde tending but slightly to discredit it, the jury may reject it and give effect to the other part.
Where, however, there was nothing improbable or suspicious in that part of a confession which went to discharge the party, and the other evidence in the cause tended to confirm its truth; the rejection of it by the court below was held erroneous, and the judgment, for that reason, reversed.
Error to Monroe C. P., which had affirmed a judgment recovered by Bush & Viele against Kelsey before a justice.
p. 441
The suit before the justice was on a note of $16,50 given by K. to B. and V"., dated October 16, 1838. Plea, non assumpsit, with notice of special matter. On the trial, the plaintiffs called Goodrich, the constable, who swore that at the time he served the summons, he presented the note to the defendant, and the defendant said it was his hand-writing—that he gave the note for a stove which was warranted, and it proved not good—it broke. After proving the amount of interest the plaintiffs rested. The defendant insisted that the whole confession must be taken together, and it showed that he was not liable. The justice overruled the objection. Martin, a witness for the defendant, testified that he was with the defendant at the plaintiff’s store in the fall of 1838, when the defendant bought a stove of Bush. The defendant took a warranted stove—does not know that Bush warranted the stove to the defendant, but it was such a stove as Bush said he would warrant to the witness. Hoyt testified that he was with the defendant when he bought the stove—did not hear the bargain—the stove broke and was worth nothing. This was all the evidence in the cause. The justice gave judgment for the plaintiffs for the full amount of the note and interest, which the common pleas affirmed. The defendant now brings error.
E. D. Smith, for the plaintiff in error.
M. F. Delano, for the defendants in error.
By the Court,
If the whole admission of the defendant is taken together,[1] it shows that there was
(a) (a) The general rule is, that where the admission of a party is resorted to as evidence against him, he is at liberty to call out the whole conversation of which the admission was a part. But the additional conversation should be relevant to the matter in issue, and must relate to the point or fact called for on the part of his antagonist by questions on his side. (See Garey v. Nicholson, 24 Wend. 351 , 2; Prince v. Samo, 7 Adolph. Ellis, 627 ; Sturge v. Buchanan, 10 id. 598.)
p. 442
no liability on his part; or, at the least, that he was entitled to some abatement from the price of the stove, and the justice has given judgment for the whole amount of the note with interest. It is true, that the court and jury are not always bound to give equal weight and importance to every part of the admission. If that part of the confession which discharges the party is in itself highly improbable, or if there be evidence aliunde, though but slight, tending to discredit it, the jury may believe one part of the confession and reject the other. (See Newman v. Bradley, 1 Dall. 240 ; Ives v. Bartholomew, 9 Conn. R. 390; Rex v. Clewes, 4 Carr. & Bayne, 221; Rex v. Steptoe, 4 id. 397.)[2] But here there was nothing improbable or suspicious in that part of the confession which went to discharge the defendant, and all the other' evidence in the cause tended to confirm its truth. The case falls directly within the principle of several decisions of this court, where the judgment of the justice has been reversed because he did not allow the party the benefit of the whole confession taken together. (Carver v. Tracy, 3 John. R. 427. Wailing v. Toll, 9 id. 141. Credit v. Brown, 10 id. 365. Hopkins v. Smith., 11 id. 161. And see Fenner v. Lewis, 10 id. 40. Smith v. Jones, 15 id. 229.) I think the justice erred on this point; and the other questions made on the trial need not be ‘'onsidei’ed.
Judgment reversed.
(b) (b) See also Cowen & Hill’s Notes to Phil. Ev. pp. 158, 294 to 231, 247 to 249
Cases cited
- Newman v. Bradley 1 Dall. 240 p. 442