Opinion
Argued May 8
Decided September 28th, 1871
Aaron J. Vanderpoel, for the appellant.
John Graham, for the respondent.
The account rendered on the 16th of April, 1864, was, at the most, but prima facie evidence that there were no other transactions which should properly form a part of it. ( Lockwood v. Thorne, 18 N.Y.R., 285.) An account rendered is not conclusive against either party to it, but may be impeached or corrected, within a reasonable time after its rendition or its receipt. Should the balance claimed be actually paid, the account would still be open to correction in the same manner. ( Ib.)
The defendants sought to prove that 200 shares of Rock Island railroad stock had been bought by them, for the plaintiff, upon his order, before that time, although the account contained no reference to them. This they had an undoubted right to prove, and if I appreciate the testimony, they were permitted to give all their proof offered on the point, without objection or restraint. The plaintiff gave proof in reply, and the question was submitted to the jury. The account rendered was thus examined and submitted to the jury for correction, upon all the evidence taken. Why the defendants had not included the 200 shares in this account, was unimportant. Perhaps, as alleged, it was customary to omit all notice, in such an account, of transactions yet unclosed. Perhaps, as suggested, the plaintiff had directed that it should not be included. Whatever may have been the occasion, the question still arose, had the 200 shares been purchased prior to that time? The reason why they were not included in the account was quite immaterial. If they had been included, this would have furnished no evidence that they had been actually purchased. That must still have been established by him. The judge explained to the jury, that the account was but prima facie evidence; the plaintiff gave his evidence on this point; the defendants gave theirs. The question was not as to motives, reasons, or mental operations, but as to the fact. The declarations of a party are ordinarily evidence against himself. Ordinarily, he may show the truth, notwithstanding his declarations. His motives and reasons are not in question. It is the fact only, that is to be looked for. I perceive no error, therefore, in excluding the evidence offered to show the reasons of the defendants, not communicated to the plaintiff, for not including these shares in their statement, or the evidence offered to show the custom of brokers on that subject.
Objection is made by the defendant to the allowance of a question to one of the defendants on his cross-examination. The witness had testified, that on the 25th of May, 1864, he had offered the stock to the plaintiff, if he would bring a certified check for the amount due upon it; that he then had the stock there at the time, and that the plaintiff could not make the payment. On his cross-examination, he was asked: "Where did you get that stock, did you go out and borrow it?" He answered, that it came from a loan on the St. Nicholas bank. The exception was to this question and answer. No possible harm could arise from this answer, as it showed the defendants in the possession of the stock, and apparently authorized to use it. This was what the defendants claimed. The answer aided their view of the case.
If, however, any doubt remained as to the defendant's right to tender the stock, arising from the manner of obtaining it, the point was fully provided for in the charge, which is also in this respect the subject of exception. The law, as laid down by the judge, in his charge upon the subject of the stock which could be tendered, was in this wise: "If the defendants tendered 200 shares of stock which they owned, or had the right to control, and the plaintiff could not, or did not pay for it and take the stock, the defendants performed their obligation." He had previously said: "It must be stock to which he has a right, not stock the certificates of which he has borrowed, having no title to the stock, simply to go through the form of a tender." To this the defendants excepted, and I think with reason. If the defendants had lawfully obtained the certificates, and were invested with the power to transfer them, it was of no consequence to the plaintiff whether they had borrowed them or were the unqualified owners. If the money had been paid, the title to the stock would have passed to the plaintiff, and he would have become the owner of it. The farthest authority in this direction, of which I am aware, holds that where a debtor has fraudulently obtained money, the creditor is not bound or authorized to receive it, and that a tender in such money is void. ( Reed v. Bank of Newburgh, 6 Paige, 337.) When the attention of the judge was called to his language, he explained it by saying, that that portion of his charge was to be understood as relating "to stock borrowed to make a tender, without either the right, or the intention to transfer the stock." As thus explained, the instruction was correct. If the defendants had no right to transfer the stock to the plaintiff, if he had been willing to accept it, there could be no tender of it. A tender implies, on the part of the actor, an offer to do the thing proposed, and a power and willingness then and there to do it as offered. In no view is that a tender, which the debtor had not the power, or the right to perform, if his offer is accepted. Neither the exception to the evidence, or to the charge, is well taken. The judgment should be affirmed with costs.
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 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 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.