I concur in a reversal of the judgment as stated by Mr. Justice Givens. In view of the fact, that the case is to be retried, I refrain from expressing any opinion as to the weight of the evidence as it appears in the record.
The question as to the admissibility of certain exhibits will undoubtedly arise on retrial of the case. I think it necessary that the admissibility of these offered exhibits should be determined by this court for the benefit of the court on retrial. (Sec. 1-205, I. C. A.; Work Bros. v. Kinney, 8 Idaho 771, 781, 71 P. 477.)
I think exhibits 8, 9, 12, 13, 17, 18, and 19 were admissible, together with the testimony of the secretary and clerk who had kept the records and attended to the correspondence in the office of appellant. The weight and credence to be given such evidence is a question to be considered by the jury under proper instructions by the court. (See 1 Wigmore on Evidence, 2d ed., sec. 92; 2 Wigmore on Evidence, 2d ed., secs. 747, 748; see also American Surety Co.v. Blake, 54 Idaho 1, 27 P.2d 972; 91 A.L.R. 153.)
The court's instruction No. 12, to the effect that the jury was not to consider defendant's exhibits 7, 11, and 15, "as proving the delivery to the plaintiff of a duly acknowledged and certified satisfaction of any mortgage therein referred to," was erroneous. They were proper to be considered by the jury in connection with other evidence in determining the question as to whether or not appellant had ever furnished the release of the mortgage. (See 20 Am. Jur., sec. 1043, p. 81.)