Cassels v. Usry, Sturgis & Co.

Trippe, Judge. 1. We cannot see any legal ground upon which the admission in evidence of the letter of Mr. Roney, counsel for plaintiff, can be put. It was written before the suit was instituted. The plaintiff certainly could not have introduced it himself. For what purpose can defendant use it upon a trial of the case on its merits? If it had contained an admission that the writer did not think the defendants owed his clients anything, it could not have been introduced against the client as evidence of such a fact. Had it been shown that it was written by the direct authority or consent of the client, the question would be different. But we do not think that a letter which an attorney may write to the opposite party, and that, too, before suit, and upon which no action on the part of that other party was claimed to have been taken, or any injury thereby accrued to him, can be used as evidence on the trial simply to prove or disprove facts on which the merits of the case rest. [624] 2. As to the new trial which was granted by the court, we will not interfere. It appears pretty plainly from the record, that the jury gave the plaintiff a verdict for his interest in the lumber that was sawed after 1866 — one-fourth of two hundred and sixteen thousand eight hundred feet. They refused to find for any portion of the lumber sawed previously. If this be so, there was the plea of the defendants that they had paid out for plaintiff the sum of $195 87 to Pollard, Cox & Company, and $85 37 to Wilcox & Gibbs. Sturgis, one of the defendants, testified that these payments were made in 1867. If, then, the verdict intended to allow the plaintiff only for lumber sawed in that year, it would seem that a credit or set-off for those amounts should have been given. We admit we cannot tell to our full satisfaction how the verdict was exactly reached, whether these items were passed upon or not. We are rather inclined to think they were not, and under the rule adopted not to interfere with a judgment granting a now trial on the ground that the verdict was not sustained by the evidence, or was against the weight of the evidence, unless it be a very strong case demanding it, we will not reverse the judgment allowing the new tidal in this case. It may be added that we would have affirmed the judgment if the new trial had been refused; and just such a case frequently happens. Judgment affirmed.