Dorlon v. Douglass , 6 Barb. 451 ( 1849 )

By the Court, Willard, J.

The testimony of Robinson? the attorney of the bank, that the plaintiff told him that his name indorsed on the $300 note was not his signature, tended to show that the plaintiff’s admission to Bell, the bank teller, that he had indorsed a note for Bragg on the morning of the 9th of April, related to the note in question. It thus increased the presumption that the note in dispute belonged to Bragg and not to the plaintiff. And if so, the former had a right to dispose of it as he did, and the latter had no right to complain.

The cause, however, on the argument, was narrowed down to the two last exceptions, viz. that to the exclusion of the whole of the plaintiff’s conversation, of which the defendant had given evidence only of a part, and that to the refusal to charge as requested. In the Queen’s case, (2 Brod. & Bing. 298,) Lord Tenterden (then Ch. J. Abbott) remarks : “ The conversations of a party to the suit, relative to the subject matter of the suit, are in themselves evidence against him in the suit, and, if a counsel chooses to ask a witness as to any thing which may have been said by an adverse party, the counsel for that party has a right to lay before the court the whole which was said by his client in the same conversation ; not only so much as may explain or qualify the matter introduced by the previous examination, but even matter not properly connected with the part introduced upon the previous examination, provided only it relate to the subject matter of the suit; because it would not be just to take part of a conversation as evidence against a party, without giving to the party, at the same time, the benefit of the entire residue of what he said on the same occasion.” This doctrine of Lord Tenterden has been repudiated by the court of queen’s bench, in Prince v. Samo, (7 Ad. & Ellis, 627.) Lord Denman, in delivering the judgment of the court, says that the observations of Lord Tenterden in the Queen’s case were not called for by the questions proposed by the lords, nor acted upon by them, nor concurred in by all the judges. Indeed several of the judges dissented from them. The doctrine, therefore, rests upon the authority of that learned judge alone. The conclusion to which the court arrived was that a witness who has been cross-examined as to what the plaintiff said in a particular conversation, can not, on that ground, be re-examined as to other assertions made by the plaintiff in the same conversation, but not connected with the assertions to which the cross-examination related.; although the assertions as to which it is proposed to re-examine be connected with the subject matter of the present suit. The same principle was recognized in the sübsequent case of Sturge v. Buchanan, (10 Ad. & El. 598,) and seems now to be the settled practice in England.

The same principle was adopted by this court in Garey v. Nicholson, (24 Wend. 350,) and repeated in Kelsey v. Bush, (2 Hill, 440.) The cases collected in Cowen & Hill’s Notes, 226 et seq., where it has been ruled that the whole confession or declaration must be taken together, are in affirmance of the same rule. Nothing is clearer, upon principle and authority, than that when a party relies upon the confession of his adversary for matter of charge, the latter is entitled to all that was said at the same time, on the same subject, by way of discharge. The court and jury are not bound to give equal weight to all parts of the admissions. They may give credit to what charges the party, and disbelieve matter said at the same timefin avoidance, If the latter is improbable in itself, or is shaken by the other proofs in the case. But if the matter of avoidance relates to another subject not Inquired about by the examining party, although relevant to the matter in issue, it is not admissible within the rule that the whole conversation must be given of which the examining party has called only for a part. The further conversation, beyond what the examining party has called out, must not only relate to the matters in issue, but also to the fact called for by him by questions on his side. A party who calls for the admissions of his adversary on a particular point, must take with it all that was said on that point. Thus in Credit v. Brown, (10 John. 365,) the plaintiff in trespass for killing his dog proved that the defendant confessed that he had shot the dog, that assaulted him on the main road. Here the admission and the avoidance relate to the same subject and can not be disjoined. When taken together they amount to a justification. So also in Smith v. Jones, (15 John. 229,) in assumpsit for goods sold, the only evidence of the sale was the admission of the defendant, coupled with the allegation that he had paid for them. In Carver v. Tracy, (3 John. 427,) the defendant said he had received a dollar of the plaintiff, but it was his due. To the same effect is Wailing v. Toll, (9 John. 141.) In such cases, when there is no evidence with which to charge a party with a debt except his admission, and that admission is coupled with a declaration of payment or other discharge, and there is no other proof in the case, the plaintiff can not recover.

But those cases are distinguishable from this-. In them the whole confession was made at the same time, and related to the same point of inquiry. In this, the confession given in evidence by the defendant related to a note, which was not the subject of the suit; and the plaintiff claims to use in his own favor a declaration made by himself, at the same time, upon the subject of the note in question. The transactions were entirely separate and distinct. A party making an inquiry as to the first, could not reasonably have expected an answer as to the last. And the matter thus proposed to be shown had no connection with the answer to the question originally put to the plaintiff; nor did it tend to qualify Or limit it in any mannér.

The exception to the refusal to charge as requested was not well taken. The fact that the plaintiff made a claim to the note, in the presence of the defendant and Bragg, and that both of them wéré silent, was proper evidence for the consideration of the jury, and was properly submitted to them by the court. The plaintiff’s counsel reqiiired the judge to charge, that it was sufficient evidence that the plaintiff owned the note. This hé very properly refused to do. There was nothing, in their silence, in the nature of an estoppel. There was other evidence, besides the plaintiff’s claim and the defendant’s silence, bearing on thé question of title. The whole of it was proper for the consideration of the jury. The judge could not be required to separate a part from the whole, and instruct the jury as to its effect; when separated from the rest.

Motion for a new trial denied;