Perego v. Purdy — 1 Hilt. 269

Majority

p. 269

William Perego v. Henry Purdy.

Headnote

Where, iu an action for goods sold and delivered to defendant, upon his wrilfen order, tho plaintiff proved an admission b3 tho defendant, that the signature to the order for the goods was liis, but it appeared that tho defendant, at tho same time, added that the goods were delivered on a credit which had not expired. Held, that the whole admission must be taken together.

There being no testimony in the case, but tho defendant’s admission, to charge him as drawer of tho order, a judgmont for tho plaintiff was reversed as against evidence.

The general rule in sueli cases is, that the whole of tho admission must be taken together; and if there is no evidence in the cause which contradicts the part which discharges the defendant’s liability, that portion cannot be disregarded. Part cannot be taken and part rejected.

Ari’EAL from a judgment of the Third District Court. This was an action for goods sold and delivered, upon a written order signed by tbe defendant. To prove the signature, the plaintiff relied wholly on an admission of defendant. It appeared, however, by tbe cross-examination of tbe witness, who testified to this admission, that at tbe time when defendant made it, be also said that tbe goods were purchased on time; that be was to have them on a four mouths’ credit; and that tbe credit bad not expired.

p. 270

Tbe action was commenced in less than four months from the sale.

The defendant’s counsel moved to dismiss the complaint, which motion was denied. Judgment was rendered for the plaintiff, from which defendant appealed.

W. C. Carpenter, for the appellant.

B. D. Wisner, for the respondent.

Upon the trial of this cause, the defendant’s admission was received, that the signature to the order for the goods oh which the action was founded was his, out he at the same time added, that the goods were delivered on four months’ credit, and that the credit had not expired. The justice disregarded the latter part of the admission, and rendered judgment for the plaintiff.

The general rule is, that the whole admission must be taken-together, and if there is no evidence in the cause to contradict the portion which discharges the liability, it cannot be disregarded.

In Carver v. Tracy (3 J. R. 427), the court said, the whole conversation must be taken together. The plaintiff could not take one part and reject the other.

In Wailing v. Toll (9 J. R. 141), the court said, the plain- - tiff relying upon the defendant’s confession, that confession must be taken altogether.

In Fenner v. Lewis (10 J. R. 38), the judge said, if you will examine as to the confession of a party, you must take the whole confession together.

In Credit v. Brown (10 J. R. 365), the defendant’s confession contained a justification, and the court said, there was no proof to charge the defendant, except his own confession, which the jury ought to have taken together, and not have charged him with doing the injury, without giving due weight to what he said at the same time in justification. See also 15 J. R. 229.

p. 271

This rule was sanctioned by tbe Court of Appeals, in Lord v. Payne (4 Comstock, 247), where it was held, that a party, seeking ■ to make bis adversary’s books evidence in bis favor, cannot do so without taking tbe whole account together, It is added in that case, “ tbe accounts are received in like manner as tbe oral admissions of tbe party, the whole of which or none must be received. Tbe defendant is concluded by it, unless be wholly disproves tbe items.”

It is true that, under such circumstances, tbe whole, admission is not entitled to tbe same degree of credit. Uncontradicted, it must be believed, but tbe adverse party may show by other evidence that such discharging matter is not true, or offer facts tending to discredit it with tbe jury, and then and only in sucb^ eases may they disregard it.

There was no evidence in this case but tbe defendant’s admission to charge him as tbe drawer of tbe order, and there was nothing which warranted the jury in disbelieving the assertion made by him, at the same time, that the goods were sold on credit.

Judgment reversed.