ON REHEARING.
Riddick, J.There is only one point on which we feel doubtful as to the correctness of our former decision in this case, and that is whether it was competent for the plaintiff to introduce the receipted bill of Stuart, Gwynne & Company as evidence of the fact that plaintiff had paid 11cents per pound for the 66 bales of cotton purchased by him from that firm. In holding, as we did in the former opinion, that this receipted bill was competent evidence of the fact of payment, we followed the law as stated in Greenleaf on Evidence, and as decided in the following cases referred to in the opinion. Sherman v. Crosby, 11 Johns. 70; Reed v. Rice, 25 Vt. 171; Greenleaf on Evidence (12 Redfield’s Ed.), § 120, and note to section 147.*
These authorities seem to-uphold the admission of such evidence as a part of the res gestae of the payment. But on further consideration of the question we are of the opinion that the weight of authority, as well as reason, is against the admission of receipts executed by persons not parties to the action unless it be shown that the person executing the receipt is dead or beyond the jurisdiction of the court, and this was not shown on the trial of this case. The law on this point is thus stated in a late work on evidence. "The written receipt of a third person acknowledging the payment of money is undoubtedly a statement of a fact against interest, but it can not be received * * * unless the receiptor is deceased or otherwise unavailable.” 2 Wigmore on Evidence, § 1456; Silverstein v. O’Brien, 165 Mass. 512; Ferris v. Boxell, 34 Minn. 262; Cutbush v. Gilbert, 4 S. & R. 551. But, although we have concluded that the admission of the receipt executed by a person not a party to the action was improper, a majority of the court are of the opinion that no prejudice resulted, for the reason that in their opinion its only effect was to show the price paid by the plaintiff for the cotton in Memphis, which fact, as they think, was shown by the undisputed testimony of the plaintiff himself. As other undisputed evidence shows the same facts shown by the receipt, a majority of the court are of the opinion that the admission of the receipt was harmless error.
But Judge Wood and myself are not able to concur in this ruling, for in our opinion there is nothing to show that the market price for middling cotton on the day Cohn purchased the 66 bales was as high as xxj4 cents per pound except the testimony of Cohn and this receipt. There is other evidence that tends to show that the price of middling cotton about that time was less than the price named. Under such circumstances we are not able to say that the introduction of this receipt was harmless error. It was read to the jury as evidence of the facts stated therein, and it seems to us that the natural inference is that it had some weight with the jury in deciding the question as to what the market value of the cotton was at that time. Silverstein v. O’Brien, 165 Mass. 512. For these reasons we think that the judgment should be reversed, and a new trial ordered, unless a remittitur be entered.
But, as before stated, the majority of the court think otherwise; and on the whole case they are of the opinion that the motion should be overruled. It is so ordered.
These sections have been omitted from text of 16th edition of Greenleaf on Evidence, and transferred to the appendix and to notes.