Rouse v. Whited

By the Court, C. L. Allen, P. J. The cases have been somewhat conflicting, as to what shall be considered a part of the same conversation of a party, called out by his adversary. In Wailing v. Toll, (9 John. 141,) the defendant admitted that the plaintiff had furnished her with medicine, and attendance, but stated at the same time, that she was a minor. The court held that the latter part of the declaration related to the same subject matter, and that both must be taken together. In Credit v. Brown, (10 John. 365,) the defendant admitted that he shot the plaintiff’s dog, but stated that the dog assaulted him, on the highway. The latter part of the declaration was held to be proper, as a part of the same conversation, and to amount to a justification for the killing. So, an admission by the defendant that he purchased goods, but at the same time adding that he had paid for them, was decided to be proper, and that the two could not be separated ; both relating to the same subject matter. (Smith v. Jones, 15 John. 229.) In Hopkins v. Smith, (11 John. 161,) the court said that where A. and B. sign a promissory note, jointly, and A. admits that B. signed the note jointly with him, but alleges that it was as security only, the whole admission must be taken together. And see [282] 2 Hill, 440, where the defendant said he had the stove for which . the note was given, but there was a breach of warranty. (See also, 4 Hill, 146.) In Bennett v. Burch, (1 Denio, 141,) the defendant refused to pay school moneys, on request, and the court held that he was entitled to give in evidence the reasons which he gave for his refusal to pay, at the time the request was made: In Delamater v. Pierce, (3 Denio, 315,) the defendant admitted the items of an account, but said he had a set-off. It was held that the latter was no evidence of set-off, and it must be proved by other evidence. In Garey v. Nicholson, (24 Wend. 351.) Judge Cowen remarks that the object of the rule is to prevent the party being misunderstood, in the particular matter to which he spoke. And he inquires, with much emphasis, “ But suppose you were to inquire whether the defendant sought to be charged as indorser, had admitted he had received due notice of dishonor, would it follow that he could show, as a part of the same conversation, an assertion that the note was a forgery ?” Within some of the cases cited, I think he could, but according to others, he could not. The court in this district, in Dorlon v. Douglass, (6 Barb. 451, 456,) remark that “ 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 for only 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.” Now w'hat was the admission called for by the plaintiff in this case? The sheriff, who had an execution against the parties, issued out of the supreme court, was in search of property on which to levy; the defendants, one or both of them, pointed out property which they said belonged to the plaintiff This was all the sheriff wanted to know, in order to make the levy, and all the plaintiff wished to establish by calling out the [283] admission or information thus given to the sheriff. The defendants’ counsel then inquired if the defendants did not, at the same time he or they pointed out to the sheriff the plaintiff’s property, say that the debt for which the execution issued was the plaintiff’s to pay? What connection had this latter declaration with the subject matter to which the first inquiry was directed ? Of what consequence to the sheriff was it, whose the debt was to pay, and what part of it related to the inquiry put by the plaintiff, as to whose property was levied on ? All he sought to prove, and all he asked, was whose property did the defendants say the sheriff levied upon. And could the defendants be entitled to add a declaration entirely foreign to the fact called for by the plaintiff, and thus make a defense by their own declarations ? I think not. Could the party making the inquiry have reasonably expected the last answer ? As well might the court have said, in Dorlon v. Douglass, that the confession concerning the note, which was not the subject matter of the suit, made at the same time, upon the subject of the note in question, might properly be given in evidence. But in that case they decided such declaration to be improper, and in my judgment that case decides the present, against the defendants. The fact, if it was so, that the debt belonged to the plaintiff to pay, should have been proved by the defendants as a separate and distinct defense. His conclusions were not evidence. The very facts on which he founded them might have been deemed insufficient in law, when passed upon by the court. The remaining point taken by the defendants is, that the justice erred in refusing to strike out the execution, and to non-suit the plaintiff. The admission of the defendants that Gr. W. Whited was the owner of the judgment, by assignment, and had issued the execution, was virtually an admission that it was on the judgment of which the exemplification was evidence. The execution was received without objection, and the defendants could not be permitted to withdraw an admission upon which the plaintiff had acted. But it was apparent, from the execution [284] itself, that it was issued on the judgment docketed and filed in Albany county. It recited the same parties, the same amount, the rendition of judgment on the 21st of March, and directed the sheriff to return it to Albany county, where the code required it to be returned. The objection and motion were properly overruled, as was correctly decided by the county court. [Saratoga General Term, July 14, 1857. But, for the reasons given on the first point, the judgment of the county court must be' reversed, and that of- the justice affirmed, with costs, C. L. Allen, James and Rose krans, Justices.]