Peck & Brother v. Ryan

HARALSON, J. 1. H. M’. Masón was the'clerk-and' book-keeper of the plaintiffs, at tlie timé the account was contracted, for the alleged-balance due'on .'.which, this suit was brought. Said Mason had died some t-ime before the trial of the cause. One of the matters of dispute on the trial was, whether or not the defendant should [340] be credited on the account with $50, which he alleged lie had paid to said Mason for plaintiffs on account in the year 1889, and which was not credited to defendant by Mason on defendant’s account with plaintiffs. The defendant sought to prove by one Robertson, that in the Spring of 1891, at the court-house in Decatur, in the presence of E. H. Peck, .one of the plaintiffs, and defendant, he heard a conversation between said Mason and defendant, in which the former stated to the latter that he knew defendant paid him $50, but whether he gave him credit for it or not, he could not say ; and all that said Peck said was, he only wanted what was right and defendant said the same thing. It was in proof that there were three credits of $50 each, on said account, entered as paid at different dates. To the introduction of this evidence, the plaintiff interposed several grounds of objection, authorizing its exclusion if well taken. The same proof was offered to be made by the defendant testifying, for himself, except that he did not testify, that plaintiff made any reply when Mason made the statement referred to. The court erred in admitting the proof. It was objected to the competency of this evidence, among other grounds, that Mason, at the time of the transaction, acted in a representative or fiduciary relation to the plaintiffs, and the admission made by him, was long after the transaction to which it related. — Code, § 2765. But, if it were conceded that these grounds of objection were not well taken, the evidence was clearly illegal and improper on other grounds. The statement made by Mason to defendant did not naturally call for a reply from plaintiff Peck. It was manifest he did not know anything to reply. He did not know that defendant had paid the $50. He was disputing the payment, from lack of knowledge or information, such as, in his estimation, would justify him in allowing it as a credit. If he had remained perfectly silent, therefore, his silence could not have implied an admission of a fact, about which he had no knowledge. Besides, Mason did-not say that defendant had paid him the $50 in dispute. He said the defendant had paid Mm that sum, but whether he gave him credit for it or not he could not say. By this he meant, evidently, that he was riot sure but that this pay341 nient constituted one of the three credits for the same amount, found in the account on the books. But Peck did not remain silent. Mason’s statement did uot give him any information he did not have before. It did not settle the dispute between him and defendant. So, they both replied that all they desired was what was right. This as to plaintiff was the same thing as if he had replied : “I know nothing myself of this alleged payment. Mason gives me no information on which I can act, but if it could be shown to me, that the money was paid to him and not credited, I would allow it.” There was no admission in this of the correct-' ness of that item. The rule for the introduction of admissions from silence, has been stated tobe, “that the statement must be hoard and understood by the party to be affected by it; that the truth of the facts embraced in it must be within his knowledge, and that the statement must be made under such circumstances, and by such persons as naturally call for a reply.”—Spencer v. The State, 20 Ala. 27, and authorities cited; Abercrombie v. Allen, 29 Ala. 281; Campbell v. The State; 55 Ala. 80; Weaver v. The State, 77 Ala. 28; Williams v. The State, 81 Ala. 10; 1 Greenl. Ev., §§ 197, 199. 2. Charge’No. 1 should have been given. It was not disputed that there were three $50 payments made by defendant on the account sued on. The charge evidently was intended as an instruction, and means that there was no legal proof, except of three such payments, and none of the fourth one claimed, which was true. 3. The second charge, when referred to the evidence, .was correct. The facts stated imply an admission of the correctness of the account. When defense is confined to one item of an account on which a party is sued, it is an admission of its correctness as to all the other items ; or, if an account is rendered to a debtor, and he retains it and makes no objection thereto in a reasonable time, his silence is an implied admission of its correctness. The charge should have been given.—McCulloch v. Judd, 20 Ala. 703; Burns v. Campbell, 71 Ala. 271; Giddens v. Bolling, 93 Ala. 95. 4. The charge requested by and given for defendant, under the evidence in the case, was an improper instruction. In this form of action it could make no difference [342] whether the authority to Stewart, to buy the goods of plaintiffs, was general or special. The only fact necessary to establish, was that the goods were procured on defendant’s authority, whether general or special. The charge precluded a finding for plaintiffs on the items sold to -Stewart, even if he had general authority to purchase goods on defendant’s credit, from any of the stores, including plaintiffs’, and although the defendant had, before that time, paid for goods that Stewart had purchased from plaintiffs on defendant’s credit, and that defendant had not revoked such authorty.—McKenzie v. Stevens, 19 Ala. 629; Whilden & Sons v. M. & P. N. B’k, 64 Ala. 31; 2 Greenl. Ev., § 65; Story on Agency, § 56. Reversed and remanded.