Opinion by
Mr. Justice Mitchell,There were two errors in the trial, for which the judgment must be reversed. The defence was a denial of the contract sued on, and, secondly, an allegation that even if such a contract had been made in plaintiff’s favor he had waived it. This branch of the defence the learned judge only touched in the most indefinite way, in his general charge that if “ there has not been anything done by the plaintiff to do away with that contract, or waive it in any way subsequent to that time and the bringing of this suit, he would be entitled to recover.” This instruction would scarcely be adequate if it stood unimpaired, but it was practically nullified by the answers to the points. Th us the plaintiff’s first point, which was constructed with reference only to the contract and entirely ignored the subject of waiver, was affirmed without qualification, while the defendant’s third *77point, which stated the facts hypothetically including the evidence of waiver, was refused. It should have been affirmed. The defendant’s fifth and seventh points were correct in substance, but were not strictly entitled to affirmance as they were put, because of certain expressions — in the former that it became the “ duty of the plaintiff thereafter to treat the stock as the stock of defendant,” and in the latter that the facts recited were “ strong presumptive evidence of an abandonment.” The former was too one-sided a presentation of the position, and the latter asked the judge to declare the weight of the presumptive evidence, which was a matter for the jury. The defendant’s sixth point, which asked the court to charge that the same evidence amounted in law to an abandonment, was properly refused. The correct instruction on this point would be that if the jury find the contract sued on, the tender of the stock in rescission, and the refusal of the defendant to accept it, then the plaintiff had the right to do any acts in regard to the stock, reasonably necessary to protect his interests, and at the same time to maintain his claim to rescind, but on the other hand, the acts alleged, the direction to sell the stock, the giving of a proxy to cast his vote, and his personal attendance and participation in the business of the stockholders’ meeting, were prima facie acts of ownership inconsistent with the demand for rescission, and therefore the jury were at liberty to infer from them an acquiescence in defendant’s refusal, and an abandonment or waiver of such demand.
The other error was in telling the jury in answer to defendant’s ninth point that “the receipt must be found by you to contain the entire contract of the parties.” This was putting the burden on the wrong party. The written receipt admittedly contained an agreement to return the money in a certain contingency, and the presumption therefore was that that was the only contingency. The jury should have been told that the writing is presumed to contain the whole contract between the parties, and they must so find, unless satisfied by clear and convincing evidence thatsanother part of the agreement was in fact made at the time, but by fraud, mistake or accident omitted from the writing.
The other assignments are not sustained. The relevancy of the matters inquired of, in the first four assignments, is not very *78clear, and if introduced for the purpose of subsequent contradiction to affect the credibility of the witness, the more regular mode is to ask the questions directlj', instead of bringing in collateral matters, indirectly, which may tend to prejudice the other party in the minds of the jury. But considerable latitude must be allowed to cross-examination in cases like the present, and much must be left to the discretion of the trial judge, whose position enables him to see the exigencies of the trial much better than we can. We are not convinced that there was any error in this respect in the present case.
Judgment reversed and venire de novo awarded.