[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 655
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 656 The account rendered on the 16th of April, 1864, was, at the most, but prima facie evidence that there were no other transactions which should properly form a part of it. (Lockwood v. Thorne, 18 N.Y.R., 285.) An account rendered is not conclusive against either party to it, but may be impeached or corrected, within a reasonable time after its rendition or its receipt. Should the balance claimed be actually paid, the account would still be open to correction in the same manner. (Ib.)
The defendants sought to prove that 200 shares of Rock Island railroad stock had been bought by them, for the plaintiff, upon his order, before that time, although the account contained no reference to them. This they had an undoubted right to prove, and if I appreciate the testimony, they were permitted to give all their proof offered on the point, without objection or restraint. The plaintiff gave proof in reply, and the question was submitted to the jury. The account rendered was thus examined and submitted to the jury for correction, upon all the evidence taken. Why the defendants had not included the 200 shares in this account, was unimportant. Perhaps, as alleged, it was customary to omit all *Page 657 notice, in such an account, of transactions yet unclosed. Perhaps, as suggested, the plaintiff had directed that it should not be included. Whatever may have been the occasion, the question still arose, had the 200 shares been purchased prior to that time? The reason why they were not included in the account was quite immaterial. If they had been included, this would have furnished no evidence that they had been actually purchased. That must still have been established by him. The judge explained to the jury, that the account was but prima facie evidence; the plaintiff gave his evidence on this point; the defendants gave theirs. The question was not as to motives, reasons, or mental operations, but as to the fact. The declarations of a party are ordinarily evidence against himself. Ordinarily, he may show the truth, notwithstanding his declarations. His motives and reasons are not in question. It is the fact only, that is to be looked for. I perceive no error, therefore, in excluding the evidence offered to show the reasons of the defendants, not communicated to the plaintiff, for not including these shares in their statement, or the evidence offered to show the custom of brokers on that subject.
Objection is made by the defendant to the allowance of a question to one of the defendants on his cross-examination. The witness had testified, that on the 25th of May, 1864, he had offered the stock to the plaintiff, if he would bring a certified check for the amount due upon it; that he then had the stock there at the time, and that the plaintiff could not make the payment. On his cross-examination, he was asked: "Where did you get that stock, did you go out and borrow it?" He answered, that it came from a loan on the St. Nicholas bank. The exception was to this question and answer. No possible harm could arise from this answer, as it showed the defendants in the possession of the stock, and apparently authorized to use it. This was what the defendants claimed. The answer aided their view of the case.
If, however, any doubt remained as to the defendant's right to tender the stock, arising from the manner of obtaining *Page 658 it, the point was fully provided for in the charge, which is also in this respect the subject of exception. The law, as laid down by the judge, in his charge upon the subject of the stock which could be tendered, was in this wise: "If the defendants tendered 200 shares of stock which they owned, or had the right to control, and the plaintiff could not, or did not pay for it and take the stock, the defendants performed their obligation." He had previously said: "It must be stock to which he has a right, not stock the certificates of which he has borrowed, having no title to the stock, simply to go through the form of a tender." To this the defendants excepted, and I think with reason. If the defendants had lawfully obtained the certificates, and were invested with the power to transfer them, it was of no consequence to the plaintiff whether they had borrowed them or were the unqualified owners. If the money had been paid, the title to the stock would have passed to the plaintiff, and he would have become the owner of it. The farthest authority in this direction, of which I am aware, holds that where a debtor has fraudulently obtained money, the creditor is not bound or authorized to receive it, and that a tender in such money is void. (Reed v. Bank of Newburgh, 6 Paige, 337.) When the attention of the judge was called to his language, he explained it by saying, that that portion of his charge was to be understood as relating "to stock borrowed to make a tender, without either the right, or the intention to transfer the stock." As thus explained, the instruction was correct. If the defendants had no right to transfer the stock to the plaintiff, if he had been willing to accept it, there could be no tender of it. A tender implies, on the part of the actor, an offer to do the thing proposed, and a power and willingness then and there to do it as offered. In no view is that a tender, which the debtor had not the power, or the right to perform, if his offer is accepted. Neither the exception to the evidence, or to the charge, is well taken. The judgment should be affirmed with costs. *Page 659