Upon the trial of this cause it was a controverted question whether the defendants purchased the 200 shares of stock on the 14th day of April, 1864, and, as such, it was submitted to the jury. The defendants claimed, and gave evidence to show, that they did purchase the stock; and the plaintiff claimed that they did not purchase it.
The plaintiff made out his case, in the first instance, by introducing in evidence an account rendered to him by the defendants on or soon after the 19th day of April. The account purported to contain all the accounts between the parties down to April 19, and showed a balance due plaintiff of $8,761.22. The 200 shares of stock did not in any way appear in the account, and hence the plaintiff claimed that they had not, prior to that date, been purchased. The defendants gave evidence that they had purchased them, but this was contradicted; and the circumstance that the stock did not appear in the account was claimed as significant proof against them.
The account rendered was a mere admission by the defendants, in writing, in effect that the account correctly stated all the items of account between the parties. It did not conclude or estop the defendants any more than an oral declaration or admission of the same facts; and they had the right to explain it by oral evidence. (Stephens v. Vroman, 18 Barb., 250;Huston v. Shindler, 11 Barb., 36; Lockwood v. Thorne,18 N Y, 285; Williams v. Glenny, 16 N.Y., 389.) This they offered to do, by the following question: "Why, in the account which has been submitted on the part of the plaintiff, as having been rendered by you, is there no entry or memorandum of the 200 shares of the stock purchased, as claimed by you?" This question was objected to by the plaintiff, and excluded by the court. I think the question was competent. The defendants, in answer to this question, had the right to show that the entry of the 200 shares of stock was omitted by mistake, or at the request of the plaintiff, or in consequence of some custom in making out such accounts, or for some other reason. They *Page 660 claimed to have purchased this stock, and they had the right to show why it was omitted from this account, which they rendered afterward. A party who has given a receipt admitting payment, has the right always to show by oral evidence that it was given by mistake, and that it was untrue. And he has the right to show how and why he came to give it. This results from the fact that these written admissions are not contracts between the parties, and are not binding upon the person making them, unless made under such circumstances that they estop him (which is not and could not be claimed here), and hence, when introduced in evidence against the person making them, he has the same right to contradict or explain them, or in some other way avoid their force, as he has in reference to any other evidence given against him. The admissions and explanations go to the jury together, and they are then to determine how much force the admissions shall have.
Hence I am clearly of the opinion that the court erred in excluding the question, and for the same reason the court erred in excluding the question "do you know the custom among brokers in relation to rendering accounts to their customers when a transaction has not been closed?" This seems to have been excluded because the defendants avowed, in answer to the court, that they did not propose to show that the plaintiff was notified of the custom. But it made no difference whether the plaintiff knew this custom or not. It was simply offered to explain the conduct of the defendants. They had the right to show that, by the custom among brokers, it was not customary to enter stocks which they were carrying in an account, until the transaction was closed by a sale or delivery of the stock. They had the right to show even that this was their private custom, and that for that reason the stock did not appear on the account.
I think no harm was done by the exclusion of the offer to prove the custom of brokers in New York, in reference to using and dealing with the stock which they have purchased and are carrying for their customers until it is called for, as I *Page 661 do not perceive that any claim was made upon the trial that the defendants had become liable by any dealing with the stock after its alleged purchase. The only two questions upon the defendants' liability submitted to the jury were, 1st. Whether they had purchased the stock upon the order of the plaintiff; and 2d. Whether they were ready and willing and properly offered to deliver the stock when called for by the plaintiff. And the offered evidence had no bearing whatever upon either of these questions.
I think that portion of the charge excepted to was right, and even if liable to any criticism, it was certainly free from objection, as subsequently explained. I find no other exceptions in the case deserving consideration, and for the reasons stated, the judgments of the Special and General Terms must be reversed and a new trial granted, costs to abide the event.
For affirmance, LOTT, Ch. C., HUNT, GRAY and LEONARD, CC. For reversal, EARL, C.
Judgment affirmed.