By the Court,
Sutherland, J.A new trial is moved for on two grounds: 1. That the judge ought to have permitted John R.' Wheaton, a witness for the plaintiffs, to testify as to his understanding of the agreement between him and the plaintiffs; 2. That the plaintiffs were at all events entitled to a verdict for the amount which was admitted to be due, and from which the defendant claimed to have been discharged by the payment of money into court by the testator.
As to the first point, the judge decided that the plaintiffs might go into proof of any thing either said or done, either before or after the agreement in question, in order to lay a foundation for the inference of the jury as to'the understanding of the parties; but that the mere understanding of one of the parties to the agreement, without such understanding having been communicated or assented to by the other party, could not be given in evidence in order to make out the contract or agreement between them.
I understand the rule to be as laid down by the judge. Any act or declaration of either party connected with the transaction, whether prior or subsequent thereto, may be given in evidence in order to shew what the agreement was. A fact is then proved, from which a jury may infer the understanding or intention of the parties; but the mere impression or understanding of one of the parties, not communicated to the other, can never justify the inference, that the understanding of the other party was the same, and in order to constitute a contract or agreement, the assent of both parties is requisite. It would be a most dangerous relaxation of the rules of evidence. There would be no possibility of con*197victing a witness of perjury, on the ground of such evidence. His understanding of a transaction, if it may be called a fact, is one resting entirely in his own mind, and .which cannot be disproved. There is nothing peculiar in this case, to take it out of the general rules of evidence. The case of McKee v. Nelson, (4 Cowen, 355,) is an exception to the general rule. That was an action for breach of promise of marriage, and the question which was allowed to be asked the witnesses was, whether living in the same house, and constantly associating with the plaintiff as a member of the family, and from an attentive observance of her whole deportment during the courtship, it was their opinion or not that the plaintiff was sincerely attached to the defendant. The point there to be ascertained was the state of the plaintiff’s affections, and the court remark, “We do not see how the various facts upon which an opinion of the plaintiff’s attachment must be grounded, are capable of specification, so as io leave it like ordinary facts as a matter of inference to the jury. It is true as a general rule, that witnesses are not allowed to give their opinion to a jury, but there are exceptions, and we think this is one of them.” Upon this point, therefore, the judge decided correctly.
I presume from the statement in the case, that it was conceded that the amount which, "under the second point, the plaintiffs contend they were at all events entitled to recover, had been regularly paid into court by the testator in a former suit, commenced against him by the same plaintiff for the same cause of action. If so, it was a payment pro tanto. The plaintiff had a right to take it out of court, and the defendant had not; and I apprehend that the defendant dying subsequent to the payment, the revival of the action against his executor, or even the commencement of a new suit, did not change the effect of the payment. This exception, therefore, is also unfounded, and the motion for a new trial must be denied.
Motion for new trial denied.