I concur with both Justice Givens and Justice Ailshie in reversing the judgment herein.
I do not think, however, that the trial court was correct in giving its instruction No. 12, restricting the admission *Page 578 of exhibits 7, 11 and 15 only for the purpose of being considered by the jury as impeachment of the testimony of respondent. I am likewise of the opinion that the court erred in refusing to admit in evidence appellant's proffered exhibits 8, 9, 12, 13, 17, 18, and 19.
The testimony of the secretary and clerk, who kept the records and attended to the correspondence in appellant's office was properly admissible. The weight and credibility of her testimony and the weight and credibility of all exhibits above mentioned were for the jury under proper instructions. This testimony and these exhibits would throw light upon the numerous transactions carried on between appellant and respondent over a long period of time and the manner in which the chattel mortgages were handled, and thus, perhaps, aid the jury in determining whether or not the chattel mortgages herein involved were released upon proper demand.
ON REHEARING (Filed May 11, 1944)