The ruling of the court, in sustaining the objection made by the defendant to the question put to the witness, Crane, on his cross-examination by the plaintiff, was wrong. Though it had no direct bearing on the merits of this controversy, and would have disclosed only that the witness, on a former trial of the cause, had been contumacious, yet it went to show the state of his feelings towards the plaintiff. Great latitude is allowed on a cross-examination of a witness, as it is one of the most efficacious tests for the ascertainment of truth. The refusal of the witness to give the name of the person from whom he had purchased the draft, when ordered to do so, by the court then trying the case, in which it was an important fact, he then remembering the name, was a circumstance calculated to affect his standing before the jury, and should, for that purpose, have been allowed. This witness was also asked, if he did not, on the former trial, swear that he kept no copy of a certain letter, and no memorandum of the letter or draft, but that he would have done so, if he had been doing a banking business. The witness answered, he did not think he did—he may have said so in relation to the letter.
For the purpose of impeaching this witness, by laying this foundation, the plaintiff called G. L. Fort, who stated that he heard the former trial, and was then asked this question : “ In the testimony of Crane, upon that trial, did he, or did he not, swear that he kept no copy or memorandum of the draft, and that he would have done so in doing a banking business, or words to that effect ?” The defendant objected to the question, for the reason that Crane, in his testimony on this trial, did not positively deny having given such testimony; and the court sustained the objection. The rule on this point, as laid down by the elementary writers, and as found in reported cases, is, if the witness neither directly admits nor denies the act or declaration, as when he merely says that he does not recollect, or gives any other indirect answer, not amounting to an admission, it is competent to the adversary to prove the affirmative, for otherwise the witness might, in every such case, exclude evidence of what he had said or done, by answering, that he did not remember. 1 Starkie on Ev. 213. The statement, however, must be relevant to the matter in issue. Crowley et al. v. Page, 32 Eng. C. L. R. 737.
This matter, of which inquiry was sought, was relevant to the issue, and the court should have admitted the question.
It is objected, that the second instruction for the defendant should not have been given. That is in these words: “ If the jury believe, from the evidence, that plaintiff Ray has, subsequent to the time of the payment of the $735 to Crane, if such payment were made, acknowledged that this was a payment of $700 to him, the plaintiff, and that the $35 was paid by Bell in lieu of the gold, such payment ought to be allowed as a credit on the note.”
This instruction assumes that such admission is conclusive on the party. The confessions of a guilty party, in a criminal case, are competent testimony, yet they are held, everywhere, as the weakest kind of evidence, and to be weighed with the greatest caution.
The admissions or acknowledgments of a party to a civil-suit, knowing his rights, are always held as strong evidence against him, but he is, notwithstanding, at liberty to prove that such admissions were mistaken, or were untrue, and he is not estopped or concluded by them, unless another person has been induced by them to alter his condition—in such a case, a party is estopped from disputing their truth, with respect to such person, and those claiming under him, but as to third parties, he is not bound by them.
Like confessions in criminal cases, verbal admissions are to be received with great caution, for the repetition of oral statements is always subject to much imperfection. The party receiving them may not have correctly understood the meaning, or the precise words used, which, given precisely as uttered, might vary the effect of the statement. But, if there be no misunderstanding—if the party making the admissions, knows his situation, and the party detailing them cannot be mistaken, such admissions are strong evidence against the party making them; for it is inconceivable that a party knowing'all the facts, shall make admissions to charge himself, unless they be true. The instruction might have been qualified, so as to tell the jury, that if the plaintiff, knowing the facts, has, etc., such acknowledgment ought to be considered as an acknowledgment of payment. If a party, plaintiff, knowing the position in which he stands, and what his rights are, shall admit, distinctly and freely, and without any equivocation or reservation, that the defendant has paid the debt for which suit is brought, or some other person has done it for him at his request, there can be no rule of law or justice that shall defeat such admission.
Exception was taken to the third instruction. It is this: “ If the jury believe, from the evidence, that the note in question is and was, by its terms, made payable at the banking house of ‘ Fenn, Crane & Co.,’ then Bell was authorized to pay said note at said banking house, and said bankers, or either of them, were entitled to receive payment of the same, if, at the time of payment, if any were made, they had the legal custody of the note, and to credit the payments on said note.. And if the jury further believe, that upon said note there are now indorsed credits to full amount due upon the note, they must find for the defendant.”
The last clause of this instruction is clearly objectionable. The fact that credits are indorsed on the note, to the . full amount of the note, is not evidence of the payment of the note, unless it be shown the credits were indorsed by the party holding and controlling the note, or by his authority. The credits may have been surreptitiously placed upon the note, by one without authority.
We can discover no valid objection to the fifth instruction, which is as follows: “ If the jury believe, from the evidence, that the witness, W. L. Crane, as the agent of the plaintiff, received from the defendant seven hundred and thirty-five dollars, for the purpose of buying a draft, and that it was agreed when the money was paid, (between the plaintiff and the defendant), that when said Crane should buy the draft, he should credit seven hundred dollars upon the note, and that in receiving said money and buying the draft, said Crane acted as the authorized agent of the plaintiff, then the jury ought to allow defendant a credit on said note for seven hundred dollars.”
The testimony fully justified this application to the court. If the facts supposed were found by the jury to be true, it ends the controversy, whether Crane bought the draft or not. If the currency was paid to hitn, at the request of Ray, for the purpose of buying a draft, he is responsible to Ray, and Bell is released. The whole controversy turns upon that, and it was fairly put to the jury.
The seventh instruction is a proper corollary from the fifth, and is free from the objections alleged against it. It is as follows : “ It makes no difference whether the amount of the money, that is, the seven hundred dollars, or the amount of the draft, was indorsed upon the note in pencil, or whether it was indorsed at all. If the money or the draft was received by the plaintiff, or his authorized agent, as part payment of the note sued on in this cause, then the jury should allow a credit upon the note of the amount of the draft or money so received by plaintiff.”
Nor do we see any valid objections to the remaining instructions, to which exceptions were taken, marked ten and eleven. They are as follows:
61 If the jury believe, from the evidence, that said plaintiff accepted said sum of $735 as a payment of the sum of $700 .on said note, any subsequent directions given by said plaintiff to said Crane, as to how and when such payment should be credited upon the note, cannot change the fact of payment, and if the credit never was made, or ordered to be made, still the payment would be good, and should be allowed upon the note.
“ If the jury believe, from the evidence, that the plaintiff inquired of Cook, in the presence of the witness, Warner, if he knew of any property of Crane’s out of which he could make his debt, it is a circumstance which the jury have a right to consider in determining the question, whether it was Crane or Bell that owed him (Ray) this debt.”
There was evidence to support both these instructions.
For the errors we have noticed, we would not deem it proper, or in accord with former rulings of this court, to reverse the judgment, inasmuch as the case was fully submitted to the jury on its merits, and no substantial misdirection of the court, on any important point, is observable.
There is still, however, an error in the finding of the jury, which we cannot get over, and that is, they have found a verdict for the defendant, when the proofs show that there is an actual balance due the plaintiff, for which he must have judgment.
The amount of the note sued on, is twenty-three hundred dollars, dated Oct. 28, 1856, and payable on or before the 21st October next, without. interest. Interest, then, is to be calculated from the 21st Oct., 1857, to the time of the first payment of $655 indorsed on the note, which was Nov. 6th, 1857, and amounts to six dollars, increasing thereby the principal sum to $2,306.10. Deducting this payment, there is left, of principal, $1,651.10. The second payment bears no date, but Ramsey says it was made when the $700 was handed to Crane by Bell, which he says was late in 1857, or early in 1858. We assume it was paid on the last day of Dec., 1857, which would be one month and twenty-five days; the interest for that time on $1,651.10 would be fifteen dollars and thirteen cents, making the sum then due, $1,666.23. Allowing the $700 then alleged to be paid, with the undated credit of $545.05, the sum of $1,245.05 was then paid, which deducted, there remained due, $421.18. Interest on this sum to Feb. 25,1858, when the last payment of $407.50 was made, would be $3.79, increasing the principal to $424.97; deducting the payment then made, $407.50, left due on the note, $17.47, to which is to be added interest to the time of the verdict, which was March 3rd, 1860, two years and seven days, making $2.10, showing a real balance due on the note, of nineteen dollars, for which the plaintiff should have had a verdict.
For this error the judgment must be reversed, as we cannot correct it here, and the cause remanded..
Judgment reversed.