Resseguie v. Mason

By the Court, Johnson, J. The letters of the defendant to the plaintiffs’ intestate, which were received in evidence in the defendant’s favor, against the plaintiffs’ objection, could only be competent upon the ground that the intestate, by receiving and retaining the letters without objection or reply, had impliedly admitted the truth of the statements therein contained in regard to the amount of funds inclosed therein or therewith. In each of the four letters thus sent and received is a statement of the amount therewith, or therein, forwarded to the intestate, and in one of them is also a detailed statement of the several amounts sent prior to that date. It has long been well settled that when one party sends an account current to another, residing in a different place, and the party to whom it is sent keeps it by him for a length of time, without replying to the statement, or disputing its accuracy, he is deemed to acquiesce in its correctness, and to admit the truth of the statement. The cases on this subject will be found collected in Cowen & Hill's Notes, n, 191, pp. 194, 195. The [99] maxim qui tacet consentiré videtur applies. The silence of the party receiving, gives consent, and the statement is received, not so much as the declaration of the party making and sending it, in his own favor, as the admission of the other party of the truth of the statement. These letters, I think, fall within this principle. But in every such ease, an essential element is the fact that there has been no denial or contradiction of the statement, in any manner. The presumption of the admission of the truth of the matter stated, is founded upon the fact that the party receiving it has omitted to deny or controvert it. This element is wholly wanting here, and the presumption of acquiescence or admission wholly fails. It is unnecessary, however, to decide this question, of the competency, or sufficiency, of this evidence when properly before the court. In the present case the letters were proved by the testimony of an incompetent witness. The only evidence of their having been written by the defendant, to the intestate, or of their having been found amongst the papers of the latter, thus showing that he had received and retained them, was the testimony of the defendant himself. The objection was taken that the defendant was incompetent to testify on the subject, under section 399 of the Code, and exception to the ruling admitting the evidence duly taken. The testimony was clearly incompetent. It' related to both a “transaction” and a “ communication” between the party testifying, and a deceased person, whose claims against such party were the subject of the litigation. The provisions of section 399 of the Code relate as well to written as to verbal communications. It cannot be said that these letters, and written statements of the accounts between the defendant and the intestate, could have had no influence on the mind of the referee in deciding the issues tried before him. They touched the vital points at [100] issue, and must be presumed to have had their legitimate influence. [Fourth Department, General Term, at Rochester, September 5, 1870. The judgment must therefore be reversed and a new trial granted, with costs to abide the event. Mullin, P. J., and Johnson and Talcott, Justices.]