Daniel v. Johnson

— Stephens J. By the Court. delivering the opinion. This was a case where Johnson, the defendant, was seeking to diminish the demand of the plaintiff, Daniel, by showing that he had turned over notes to the plaintiff, with an understanding that they were to be applied as a credit on the notes sued on. [1.] The plaintiff objected to the proof on that point. We can see no valid objection to its admission. It was rather vague to be sure, being an admission of plaintiff, that he had received notes to a certain amount to be applied to the defendant’s indebtment, without stating what indebt [211] merit; but such as it was, it ought to have gone to the jury, for what it was worth. It was said in the argument, that the notes turned over, were the best evidence of their amount, &c. It might as well be said that the bank-bills in which a payment happened to be made, were the best evidence of their amount. There was no attempt here to prove the contents, or any part of the contents of the notes turned over, and hence the rule, as to the best evidence, does not apply. It was asimple question of how much the plaintiff had agreed to credit on his demand. . [2.] The plaintiff offered in evidence, by way of rebuttal, certain copartnership notes of himself and defendant, in connection with evidence that the notes turned over were, by agreement between the parties, to be applied to defendant’s part of such copartnership debts as had been paid off by plaintiff. This evidence was rejected, upon the ground that the notes appeared on their face to be firm notes, and therefore had nothing to do with individual transactions between the parties. This ground of objection loses sight of the issue. The question was, whether or not the notes turned over, were to be applied to the notes sued on. If they were by express agreement to be applied to other demands (without regard to what those others might be) it was evidence that they were not to be applied to the demand in suit. To show that the plaintiff had such other demands by producing them, was corroboration of his proof touching the agreement; and the evidence ought to have been admitted. [3.] The plaintiff offered to read in evidence his own answer, as part of the entire record in a chancery suit, wherein Johnson was complainant, and Daniel was defendant; and upon objection made, the Court ruled it out. We think it was rightly excluded, for it did not appear, so far as we are informed by the record in this case, that the answer was responsive to the bill; if not, it could not be evidence for Daniel, even in the chancery suit, and it will hardly be sug [212] g<Dst< d that he could use his own answer further in another case, than in the case of which the answer forms a part. [4.] We think the Court erred in giving the jury any cbaige as to how payments were to be applied in the absence of an agreement about it between the parties, for that was not this case. Here both sides contended there was an agreement, and all the evidence tended to show there was one. They differed as to what the agreement was, [5.] The Court erred also in charging the jury on the subject of the proper application of individual funds, when turned over to one partner by another without directions how to apply them. The error here, as in the other instance, was in a mistake of the issue. There was not an absence of directions, but a dispute about what the directions were. Judgment reversed.