The opinion of the court was delivered by
Williams, Ch. J.— The first question which arises in this case is, whether the fact of a tender, relied on by the defendant, was sufficiently established. The auditors state, that it was found from testimony of defendant alone, and the question is, whether he was a competent witness to that fact, in the trial before auditors. It is, and has been for a long lime, vexata questio, as to what facts the parties may testify in this action; and it is difficult to lay down any general rules upon the subject. Most of the questions arising .are' referred to, and are decided by auditors. Parties are witnesses before them, but they are not witnesses on the trial of any issue joined to the court or jury. From the course of decisions on this subject, many questions which were formerly considered as proper to be tried by jury, must now be tried by auditors. It has been decided that the plaintiff is not bound by his account given on oyer: he may produce a fictious account in oyer, to which, defendant cannot, with safety, plead payment or tender, and is therefore deprived of the benefit of such defence, unless he can avail himself of it on the hearing before auditors. It has also been decided, that a' defendant, before the auditors, can avail himself of the non-joinder of another, who should have been made defendant, contrary to the rule which, in other cases, requires this to be plead in abatement. It has also been decided, that a party may testify to a new promise, the effect of which is, to take an account out of the operation of the statute limitations. This decision was however qualified, by *348saying, that on the testimony of the párty alone, the auditors should not find the fact of the new promise to avoid the operation of the statute of limitations; and indeed, it is difficult to give any good reason why the party should be precluded from testifying to this fact, when he is made a witness for purposes so extensive as he has been, both in Connecticut and in this state. Qualified as this decision was, there can be no objection to it. As most every question in relation to an account, comes before auditors, and as the parties there are witnesses, and can avail themselves almost of every defence, if they are not permitted to testify in relation to any particular defence, it must be because that defence is made an exception to the general rule. The exception cannot well be derived from any general 'Vinci pies which are established on the subject. If we could separate the defences, and say that one defence could only be plead to the action, as: a reason why the defendant should not account, and that another could only be taken advantage of in the hearing before auditors, we could then adopt as a general rule, that any matter which must be thus put in issue by a plea, must be proved by testimony other than the oath of the party. In relation to the particular defence relied on in this case, we are, however, inclined to say, that if a party relies on a tender of the amount due, although he may avail himself of this in the hearing before auditors, yet he must prove it by other testimony than his own oath; — that this must be considered as an exception to the general rule, which admits the party to testify to those matters which are a discharge, as 3 payment, or a settlement, fee. The decisions which have been made in relation to the testimony of a party, have been founded on 3 principle which will not apply to the case of a tender. In an action, or claim on book, the plaintiff is permitted to testify to the sale and delivery, and to every material circumstance which constitutes the ground of his action, and this upon the supposed confidence existing between the parties. The sale and delivery of goods, or performance of services, are usually charged on book, or rest in account; and reliance is had on the book, and on the oath of the party to substantiate the charge. The defendant, by examination of the plaintiff, should be of course entitled to the same testimony, as to every thing which may be supposed to have passed between the parties in the same way, and arising from this mutual confidence in discharge of the claim. Hence we may examine the plaintiff as to any agreement about the price, the mode of payment ’agreed on, whether the goods or services were delivered or per-fowled to or for the benefit of the defendant, or in payment or ex? *349tiriguishment of some antecedent claim which the defendant held'- ° against the plaintiff, — in short, whether there is any indebtedness from the defendant to the plaintiff. And as he may be subject-to an action on the testimony of a plaintiff, and might not be able to substantiate his defence by the same testimony, it would be the-height of injustice to leave him at the mercy of the plaintiff, or-compel him to rely on the testimony of the plaintiff alone. The law therefore has provided, that he may also avail himself of the-beriefit of his own oath — may relate the facts as he understands' them, and leave the triers to decide upon the weight of testimony, and'so far there is no injustice or hardship, as the testimony only is to what may be supposed from the nature of the dealings between the parties, and from the confidence which is always placed in each other in relation to matters of account, to rest between them, and to have'taken place between them alone, when no witnesses-were called. It is to be observed, however, that no decision has as-yet-permitted the party to testify to any thing but what might either be given in evidénce on the general issue, in an action of assump-sit, or but what would on some proper plea, be a full and complete-defence in that action. A tender however is not of this- description. It is only a temporary bar to the plaintiff’s claim. It is an adversary proceeding, commonly made where a controversy is- expected. Witnesses are usually called, and moreover, the tender must be kept good, and the money brought into court; arid altho’ it may be taken advantage of before auditors, for the reasons already suggested, yet I apprehend the money must be brought into court, and deposited for the use of the plaintiff; — that it is not sufficient to produce it to the auditors, who are only the triers of the controversy between the parties. As a tender is an adversary proceeding preparatory to a legal controversy, where witnesses may be, and usually are called, it is not a proceeding where the parties may be supposed to rely on the testimony of each other, and where there is no confidence placed. The reasons which have induced the courts to decide that a party may testify to a payment or settlement, or that which goes in discharge of the plaintiff’s claim, do not require us to decide that the parties should be witnesses about the same. On this part of the case, therefore, we are of opinion that the party was improperly permitted to testify in relation to the tender.
. On the subject of the charge for the calf, it may be remarked, there is nothing from the facts found by the auditors, by which we can say that it was not a proper charge on book. It seems the calf *350was purchased in February, probably without any idea of its effect on the suit then pending. Whether there was any design on the part of Gallup, that it should.have any effect on this suit, .we can only conjecture; but as it was sold three months before the meet-, ing of the auditors, and was a proper subject of a charge on book, for which no other security was taken, and must or might be recovered in an action on book, we can find no legal reason why it should not be allowed to the defendant. It having become a part of the account between the parties, the defendant was not obliged to receive thé pay therefor and subject himself to the consequences of its determining this suit against him. If this operates injuriously to the plaintiff, it arises from the statute, which provides, that in actions of account, the auditors must take the account to the time of auditing.
This • is not the first case which has been before us, where the balance of the account has been changed by the dealings between the parties, had subsequent to the bringing the action, so as to turn the case ,differently from what it would have been decided at the commencement. In this case, however, if the tender was actually made, as testified by the defendant, and which the auditors, from bis testimony found, and there is some reason to suppose that it might have been so, from the deposition of Henry M. Bates, there was nothing due to the plaintiff at the commencement of this suit, and as he has availed himself of the advantage which the law gives him to exclude that evidence, which was improperly received by the auditors, but which however was satisfactory to them of the fact testified, he must of course rest satisfied under the disadvantage' which he is laid under in consequence of another principle of law, which operates to the advantage of the defendant.
The result is, that on the alternative presented by the auditors, that if the court should be of opinion that three dollars for the calf should be allowed, and the tender was not legally sustained, there is due from plaintiff to defendant the. sum of fifty cents, the defendant will be entitled to judgment for that sum.
The judgment of the county court, which was only for the defendant to recover his cost, must therefore be reversed, and judgment entered for defendant to recover fifty cents and his cost,