The opinion of the court was delivered by
Horton, C. J.:
The main question in this case is, whether an account stated between the parties as alleged in the petition was conclusively established by the testimony. After the plaintiff rested, the defendant announced he would offer .no evidence. Thereupon the plaintiff requested the court to instruct the jury to find for the plaintiff the amount prayed for in the petition. The court refused to give the instruction, and counsel urge that such refusal was material error, and they also allege that the verdict was contrary to the evidence. Upon the trial, the plaintiff read in evidence a letter of the defendant, of date of February 12, 1874, to its auditor, one S. T. Smith, stating that the total amount of Belford’s defalcations, as figured by Mr. Fleming and himself, was $7,582.11; that in his January report, sent by Mr. F., he reported as short, $5,042.07; that the balance, $2,540.04, would have to be reported in his February account; that it was pretty rough on him, but he proposed paying every dollar, but that he must have time. The letter further contained a statement of his own pecuniary condition, and the efforts on his part to obtain something out of the property of Belford. Smith was then produced as a witness, and testified:
“I was auditor of the Kansas Pacific railway company in 1873, 1874 and 1875, and have been till now, and as [51]*51such have had during that time charge of all the accounts of the company at stations, or wherever they may be. A part of my duties is to keep account of all moneys received and paid out by agents and officers. T. J. Anderson was agent of the company at Topeka, in 1874, till sometime in March. [A paper is here shown witness.] This is a copy of statement of freight account at that station on the last day of February, 1874. I met Mr. Anderson in regard to that account three or four times at least. A copy of it, except as to heading, was furnished him. I saw it in his possession afterward. It was a copy, all but the heading; the figures were the same, and the balance was the same. He made no objection to it. It was the same thing as the account attached to the petition, stated in a different way, but the passenger account was omitted. Both balances are the same. I had interviews with Anderson from the 14th of February to the middle of March. This was the adjusted balance as ascertained at that time. It has never been paid.”
Plaintiff then read the account in evidence, which purported to be the monthly freight account of the defendant for February, 1874, inclusive of February 27th. A summary of it is as follows:
Balance as reported...............................................$9,127 15
Amount added...................................................... 425 00
Total............................................................$9,552 15
Amount deducted.................................................. 45 20
Balance, as corrected................ $9,506 95
Less amount of unpaid bills.................................... 1,889 79
Short in cash.................................................$7,617 16
On cross-examination he testified:
“ This account was made up from my records by my letter clerk. Clerks made up the books. I know nothing except from the books. Sent statement to Anderson 21st of March, 1874. I saw it with him afterward, or rather the paper that this was copied from. Think I sent several after and before this ; not all like this one; subsequent ones were different. Anderson not agent 21st of March; went out of office 14th of February. He had no control after that time. I don’t know what he had to do with making these accounts; they were given to him as matter of information. Don’t know that letters were sent with subsequent accounts.”
Here the testimony closed. Upon this testimony we do [52]*52not perceive any error in the action of the court in refusing-to instruct the jury to return a verdict peremptorily for plaintiff, and in directing them to decide from the evidence, whether previous to the commencement of the action the defendant was indebted to the plaintiff on an account stated between the plaintiff and the defendant, or between the defendant and an agent of the plaintiff, nor for informing them that they were the exclusive judges of the evidence, of its weight, and of the credibility of the witness. There was nothing in the letter of the defendant establishing a stated account. It was dated before the defendant ceased to be agent for the plaintiff, and did not agree in amount with the alleged stated account. The proposal to pay was coupled with the condition: “ But I must have time." Again, while the defendant therein proposed to pay Belford’s defalcation, such proposition is a mere volunteer offer, as it nowhere appears in the letter or by any other evidence that Anderson was legally bound for Belford’s conduct. The intimation in the letter that Belford was an employé of the plaintiff carries with it the presumption that Anderson was not liable for the defalcation, and that his promise to pay the same was nudum pactum. This view leaves the claim of the plaintiff to rest solely on the testimony of Smith. On- this point counsel argue that the jury were not justified in finding that he did not testify to the truth. They say: “ He was a witness whose character was not assailed, and of undoubted capacity to testify what the facts were, and that his testimony ought not to have been repudiated.” Conceding for the argument that a stated account between the parties was proved, within the rule of law laid down by the court, if the evidence of Smith was believed by the jury, the question at once arises, were the jury bound to accept the statements of this witness as absolute verity ?
In Callison v. Smith, 20 Kas. 36, Mr. Justice Brewer, speaking for this court, said; “We cannot agree with the learned counsel, that because a witness testifies to a matter, it must be believed unless there be testimony directly impeach[53]*53ing the witness or contradicting the testimony. The very matter stated by the witness may be too improbable to be believed by any intelligent person, and its mere statement is its own refutation, without a word of impeaching or contradictory testimony.”
In the late case of Molitor v. Robinson, 40 Mich., 201, 202, Judge Cooley said that the plaintiff “testified to purchasing the property in controversy in good faith and paying the purchase price in money. There being no distinct evidence to the contrary, plaintiff claimed that there was nothing on this branch of the case to leave to the jury; in other words, that good faith was conclusively made out by this evidence, thus left to stand uncontradicted. The circuit judge, however, held that the question must be submitted to the jury, and in this he was correct. The jury were under no obligation to believe the plaintiff's statement, and unless it convinced their reason they were entirely at liberty to reject it altogether. They must take the evidence with all its surroundings; and often other things which go to characterize a transaction are more convincing than positive evidence of any single witness, especially if an interested witness.” This case is not perhaps as strong an illustration of the right of a jury to disregard the testimony of witnesses as Callison v.
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The opinion of the court was delivered by
Horton, C. J.:
The main question in this case is, whether an account stated between the parties as alleged in the petition was conclusively established by the testimony. After the plaintiff rested, the defendant announced he would offer .no evidence. Thereupon the plaintiff requested the court to instruct the jury to find for the plaintiff the amount prayed for in the petition. The court refused to give the instruction, and counsel urge that such refusal was material error, and they also allege that the verdict was contrary to the evidence. Upon the trial, the plaintiff read in evidence a letter of the defendant, of date of February 12, 1874, to its auditor, one S. T. Smith, stating that the total amount of Belford’s defalcations, as figured by Mr. Fleming and himself, was $7,582.11; that in his January report, sent by Mr. F., he reported as short, $5,042.07; that the balance, $2,540.04, would have to be reported in his February account; that it was pretty rough on him, but he proposed paying every dollar, but that he must have time. The letter further contained a statement of his own pecuniary condition, and the efforts on his part to obtain something out of the property of Belford. Smith was then produced as a witness, and testified:
“I was auditor of the Kansas Pacific railway company in 1873, 1874 and 1875, and have been till now, and as [51]*51such have had during that time charge of all the accounts of the company at stations, or wherever they may be. A part of my duties is to keep account of all moneys received and paid out by agents and officers. T. J. Anderson was agent of the company at Topeka, in 1874, till sometime in March. [A paper is here shown witness.] This is a copy of statement of freight account at that station on the last day of February, 1874. I met Mr. Anderson in regard to that account three or four times at least. A copy of it, except as to heading, was furnished him. I saw it in his possession afterward. It was a copy, all but the heading; the figures were the same, and the balance was the same. He made no objection to it. It was the same thing as the account attached to the petition, stated in a different way, but the passenger account was omitted. Both balances are the same. I had interviews with Anderson from the 14th of February to the middle of March. This was the adjusted balance as ascertained at that time. It has never been paid.”
Plaintiff then read the account in evidence, which purported to be the monthly freight account of the defendant for February, 1874, inclusive of February 27th. A summary of it is as follows:
Balance as reported...............................................$9,127 15
Amount added...................................................... 425 00
Total............................................................$9,552 15
Amount deducted.................................................. 45 20
Balance, as corrected................ $9,506 95
Less amount of unpaid bills.................................... 1,889 79
Short in cash.................................................$7,617 16
On cross-examination he testified:
“ This account was made up from my records by my letter clerk. Clerks made up the books. I know nothing except from the books. Sent statement to Anderson 21st of March, 1874. I saw it with him afterward, or rather the paper that this was copied from. Think I sent several after and before this ; not all like this one; subsequent ones were different. Anderson not agent 21st of March; went out of office 14th of February. He had no control after that time. I don’t know what he had to do with making these accounts; they were given to him as matter of information. Don’t know that letters were sent with subsequent accounts.”
Here the testimony closed. Upon this testimony we do [52]*52not perceive any error in the action of the court in refusing-to instruct the jury to return a verdict peremptorily for plaintiff, and in directing them to decide from the evidence, whether previous to the commencement of the action the defendant was indebted to the plaintiff on an account stated between the plaintiff and the defendant, or between the defendant and an agent of the plaintiff, nor for informing them that they were the exclusive judges of the evidence, of its weight, and of the credibility of the witness. There was nothing in the letter of the defendant establishing a stated account. It was dated before the defendant ceased to be agent for the plaintiff, and did not agree in amount with the alleged stated account. The proposal to pay was coupled with the condition: “ But I must have time." Again, while the defendant therein proposed to pay Belford’s defalcation, such proposition is a mere volunteer offer, as it nowhere appears in the letter or by any other evidence that Anderson was legally bound for Belford’s conduct. The intimation in the letter that Belford was an employé of the plaintiff carries with it the presumption that Anderson was not liable for the defalcation, and that his promise to pay the same was nudum pactum. This view leaves the claim of the plaintiff to rest solely on the testimony of Smith. On- this point counsel argue that the jury were not justified in finding that he did not testify to the truth. They say: “ He was a witness whose character was not assailed, and of undoubted capacity to testify what the facts were, and that his testimony ought not to have been repudiated.” Conceding for the argument that a stated account between the parties was proved, within the rule of law laid down by the court, if the evidence of Smith was believed by the jury, the question at once arises, were the jury bound to accept the statements of this witness as absolute verity ?
In Callison v. Smith, 20 Kas. 36, Mr. Justice Brewer, speaking for this court, said; “We cannot agree with the learned counsel, that because a witness testifies to a matter, it must be believed unless there be testimony directly impeach[53]*53ing the witness or contradicting the testimony. The very matter stated by the witness may be too improbable to be believed by any intelligent person, and its mere statement is its own refutation, without a word of impeaching or contradictory testimony.”
In the late case of Molitor v. Robinson, 40 Mich., 201, 202, Judge Cooley said that the plaintiff “testified to purchasing the property in controversy in good faith and paying the purchase price in money. There being no distinct evidence to the contrary, plaintiff claimed that there was nothing on this branch of the case to leave to the jury; in other words, that good faith was conclusively made out by this evidence, thus left to stand uncontradicted. The circuit judge, however, held that the question must be submitted to the jury, and in this he was correct. The jury were under no obligation to believe the plaintiff's statement, and unless it convinced their reason they were entirely at liberty to reject it altogether. They must take the evidence with all its surroundings; and often other things which go to characterize a transaction are more convincing than positive evidence of any single witness, especially if an interested witness.” This case is not perhaps as strong an illustration of the right of a jury to disregard the testimony of witnesses as Callison v. Smith and Molitor v. Robinson, supra, and yet the principle announced in these cases is, to some degree, applicable here. As a general rule it belongs to a jury, in considering the weight of evidence, to pass upon the credit due to a witness. In what cases, if any, the uncontradicted and unimpeached oral testimony of a witness cannot be discredited by a jury is a matter of great difficulty to determine. Nor need we determine the question in this case. There was certainly enough evidence presented to raise a serious doubt as to the action of the defendant in the premises. Unless the evidence showed clearly that he understood that the account presented was a final adjustment of the respective demands between him and the plaintiff, a jury would hardly be compelled, under the most rigorous rule of implicitly accepting testimony, to find [54]*54an adjustment between the parties. “There is no arbitrary-rule of law which renders an omission to object in a given time equivalent to an actual agreement or consent to the correctness of the account rendered; but it is merely competent evidence, subject to be rebutted by circumstances from which counter inferences may be drawn.” (Lockwood v. Thorne, 18 N. Y. 285.) No attempt was made on the trial to show any indebtedness existing between plaintiff and defendant prior to the alleged account being stated, outside of the letter of the defendant. The account furnished to defendant contained charges against him for all the month of February, 1874, yet Smith testified, “he went out of office on February 14th.” Again, the testimony was to the effect that the account sued on was sent to Anderson March 21st, and that several other statements or accounts were sent him after and before this, and that the subsequent ones were different; further, that these statements or accounts were given him as matters of information. Under these circumstances, why the officers of the plaintiff selected the statement furnished on March 21st as the adjusted balance, it is quite difficult to tell. The natural inference would be, that the later statements would be the adjusted balance, rather than the earlier ones. No promise to pay was testified to by Smith, and to hold the testimony concerning the omission of defendant to object to one of many statements furnished him for information as a conclusive admission of the correctness of his account which the jury were bound to accept, is carrying out the doctrine of inferences from silence further than we are willing to approve. Counter inferences to the testimony of omission to object appeared in the testimony of the witness, and these were proper considerations for the jury. We think the district judge was correct in submitting the case to the jury, and as their verdict has received the sanction of the trial court, we do not feel justified in setting the judgment aside.
We have considered all the other questions presented in the argument of counsel, but do not think it necessary to comment further than to remark that we perceive no mate[55]*55rial error in the rulings and instructions of the court, and therefore the judgment of the district court will be affirmed.
All the Justices concurring.