Pearson v. Sabin

10 N.H. 205

• Court: Superior Court of New Hampshire
• Decided: July 15, 1839
• Status: Published

Opinion

Upham, J.

The defence set up in this case is, that a portion of the plaintiff ⅛ claim is barred by the statute of limitations, and that the remainder of the account, consisting of charges for services rendered, and expense incurred, was without the authority of the defendant.

The evidence, to take the case out of the statute of limitation, is derived from the letter of the defendant, offered in evidence by the plaintiff.

The first question arising on this letter is, as to its constituting evidence of a subsisting debt which the -defendant is liable and willing to pay. No acknowledgment could well be more explicit. The defendant recognizes the existence of an account, and encloses an amount something more than sufficient for its payment, and forwards it by mail, as directed. This is his declaration in the letter. On the face of it, it clearly admits the account; and, if uncontradicted as to the enclosure of the money, it would show, not only a willingness to pay, but an actual payment.

The plaintiff, however, contends that such payment was not made ; and the question arises, whether such evidence is admissible to contradict the purport of the letter in that respect.

It is clear that an admission offered in evidence must go entire to the jury, with all the declarations both for and against the party making it; but, although the whole is evidence, the jury are not bound to adhere to the admission in all its qualifications and conditions, or to give the same credit to all the facts embraced within it. They may believe the admission in part, and reject it in part, if they see cause. This is well settled in admissions in criminal cases ; and we see no good reason why the rule should be different in civil trials.

Where the only evidence against a party charged with murder was his own confession, which admitted that he was present at the time, but took no part in the transaction, it was held that the whole was evidence for the prisoner, but that the jury might disbelieve any part. Rex vs. Clewes, 4 Car. & Payne 221.

A prosecutor gives in evidence the statement of a prisoner, which is exculpatory; it is not, therefore, to be taken as true, but it is for the jury to say whether they think it consistent with the other evidence. Rex vs. Steptoe, 4 Car. & Payne 397.

The prosecutor offers evidence of what was said by the prisoner before the justice; it is evidence as well for as against him. It is for the jury to say, under the circumstances, whether they believe it or not. 1 Ryan &y Moody 257, Smith vs. Blandy & al. Many similar cases might be cited.

The case 11 Johns. 260, Lawrence vs. Ocean Ins. Company, is directly in point. It was there holden that where an answer in chancery was given in evidence in a court of law, that is, where part of an answer is offered as evidence, the party answering is entitled to have the whole of his answer read; and it is to be received as prima facie evidence of the truth of the facts stated in it; open, however to be rebutted by the opposite party. The party can put in the answer of his opponent; and, as far as it is in his favor, it is evidence ; but the facts in it making against him he can rebut by other testimony. See, also, Hoffman vs. Smith, 1 Caines’ R. 57.

Where, therefore, a party offers in evidence the admissions of an opponent, though the whole admission must be taken and weighed together, it is not necessary that the jury must find it to be either wholly true or wholly reject the evidence. It must all be received as testimony for consideration ; but the truth of the whole or any part may be judged of from the declaration itself, or from other testimony ; and the party is not precluded from offering other testimony, overruling or controlling those portions of the admission making against him. Such parts of the admission go in as incidental to the evidence relied on by the party presenting it; and though evidence when in, still it may be rebutted or disbelieved.

The evidence offered in this case was received, subject to such ruling of the law, and was so considered by the jury ; and their finding on the subject is conclusive.

It is contended, however, that the jury, having found the fact that the defendant did not enclose the money, or abstracted it after it was enclosed, is evidence to show an unwillingness on the part of the defendant to pay this debt, and therefore the evidence of a new promise is negatived.

But this secret act was not brought home to the knowledge of the plaintiff. The defendant made to the plaintiff an open promise of payment; and if there was some act, declaration or reservation, apart from this, tending to show an unwillingness to pay, but which was kept secret from the plaintiff, it could in no manner qualify the admission, but would be wholly nugatory.

Judgment on the verdict for the plaintiff.