Phy v. Clark

Mr. Justice Beckwith delivered the opinion of the Court: The note upon which judgment was entered is evidence of an account stated between the parties, and it is incumbent upon the appellant to show what the items of the account were, and that some one or more of them were erroneous. The presumption is that the note was given for the correct amount, and the evidence before us is not sufficient to rebut that presumption. We have evidence of dealings between the parties prior to the time the note was given; but the evidence fails to show what items were included in the settlement when it was given, or that any of them were erroneous. Winslow, one of the defendants, was examined as a witness before the master by his co-defendants under the usual order, reserving all just objections. When his deposition was taken, the appellant caused the master to note an objection on the ground of interest, but from the record it does not appear that any objection was made to reading the deposition on the hearing. Objections to the admissibility of' testimony not made at the hearing are considered as waived, and will not be noticed in this court. The record must show that the objection was made or it will not be regarded. The corn received by the appellees to be sold for the appellant was sent to Mew York for sale without his authority. It was consigned to the appellees for sale in Chicago, and they had no more right to send it to Mew York for that purpose than they had to send it to London or Bio Janeiro. The net proceeds of a sale in the Chicago market should have been applied in payment of the appellant’s note. The difference between the sum indorsed on the note and the sum which should have been applied in that manner, is $9.21. The decree of the court below is reversed without costs in this court, and the cause is remanded with directions to enter a decree enjoining the plaintiffs from collecting the sum of $9.21 included in the judgment. The decree of the court below will also be without costs. The appellant’s costs have been incurred in regard to claims asserted which he had failed to establish, and it would be unjust to allow them to him. The appellees were in fault in not crediting the appellant upon his note with the proper sum as the proceeds of his corn. Under these circumstances we are of the 'opinion that each party should pay his own costs. Decree reversed.