Kelly v. McKenna

Per Curiam. In this case, the declaration contained two special counts, and also the common counts. The special counts set up a contract between the parties, for the employment of -Mc-Kenna by Kelley, as master of a schooner for the season of navigation; that McKenna entered upon the service, and continued about three weeks, when he was dismissed by Kelley, who refused to keep- him any longer. Kelley pleaded the general issue, with notice of set-off. On the trial, Mc-Kenna, who was the plaintiff below, gave evidence tending to show the contract set up in the special counts; that he entered upon service under the contract, and, at the end of about three weeks, was dismissed 'by Kelley, who refused to be bound by, or recognize the contract. McKenna having rested his case, Kelley offered evidence of set-off under his notice, but this was excluded by the court, under an objection by McKenna’s counsel, that his demand was incapable of being set off, and that, consequently, the set-off proposed by Kelly was inadmissible. When the testimony on both sides was concluded, the counsel for McKenna withdrew all claims to recover under [386] the common counts. The exclusion of the evidence of set-off, when it occurred, was clearly erroneous, and this being so, it is incumbent upon defendant in error to show that it was cured, or rendered harmless by what occurred subsequently. He. insists that this is shown by the withdrawal of all claim to recover under the common counts. But we cannot presume that the jury were sufficiently informed, without instructions from the court, to enable them to distinguish the evidence to be applied to the special counts from that which would apply to the common counts, and since the plaintiff below had given evidence which was pertinent to the issue on the common counts, and it does not appear that the Circuit Judge gave the jury any instructions on the subject, but left them at liberty to find a verdict under the common counts, and since the verdict is entirely consistent with the theory that the finding was for the three weeks service under the general count, we cannot assume that the error in refusing Kelly’s evidence' was corrected or rendered harmless. The copy of the letter written by McKenna to Bruce should have been admitted. The defendant testified that it was in its leading points a correct copy of a letter he had written to Bruce. This evidence of .McKenna converted the contents of the paper as to its leading points into admissions by him, and made them original evidence. It was of no consequence that the paper was a copy of a letter he had written. When he made its contents identical with his declaration, the paper became an original for the purpose of showing his declaration to Bruce; and it was relevant, as it bore upon the state of the accounts between the parties. There must be a new trial in consequence of the errors which have been stated; but as the other questions raised by the assignment of errors, will not be likely to arise in a future trial, we deem it unnecessary to consider them. Judgment reversed with costs. The other Justices concurred.