6 N.Y. 207 | NY | 1851
The first question presented is upon the exception taken by the plaintiff’s counsel to the decision of the judge, in refusing to permit an entry made in the plaintiff’s books to be read as evidence of the fact that the copper there charged had been sold to the ship Thomas Williams and owner's. This entry was not made by the plaintiff, but by his clerk, who testified that the bargain was made between the plaintiff and defendant in his presence. In such case the party is not entitled to the benefit of his books as evidence. He had a clerk who heard the bargain and made the entry. Whether the entiy was justified by the facts must depend upon the clerk’s recollection and other evidence of the bargain. The question before the jury was, whether or not the bargain made warranted the entry. But it was claimed as a part of the res gestee, and as such was permitted to be read to the jury as evidence of the mere fact that such an entry was made. Of this ruling the plaintiff ^id no reason to complain. The entry was neither the act nor the declaration of the plaintiff made at the time, but that of Ms clerk, who was upon the stand to assign the reasons why the entry was thus made.
The next exception arises upon the admission of proof that the defendant’s credit at the time of the sale of the copper was good. An important question in the case was, to whom did the plaintiff give credit for the copper, to the defendant or to Williams ? If the defendant had been irresponsible at the time, it certainly would have contributed much to strengthen the argument that the credit was not given to him. His good credit would have the effect to keep the attention of the jury upon what he said and did at the time of the sale, for the purpose of determining from what passed at the time to whom the credit was in fact given. The parties differed in relation to the true interpretation that should be given to their language while bargaining. In such case, extrinsic facts are frequently resorted to to aid in the interpretation of language susceptible of more than one construction, and are competent for that purpose. (French v. Carhart, 1 Comst., 96.) The only object of the evidence objected to was to hold the attention of the jury to the language used, that from it alone they might determine to whom the credit was given. This they were bound to do without the evidence of the good credit of the defendant, there being no other extrinsic facts to be repelled by the proof of the defendant’s responsibility. The evidence may, therefore, have been immaterial. The fact, however, that the defendant proved that which the law,. without proof to the contrary, would presume to exist, is no ground of error.
At the conclusion of the judge’s charge, the plaintiff’s counsel requested him to charge “that the representations and conduct of the defendant were sufficient to induce the
The judgment should be affirmed.
Judgment affirmed.