Opinion
(December Term, 1834.)
The declarations of a party must be taken altogether, as well those to discharge, as to charge him: and where a person to whom an account had been presented, did not object to any of the items, but only contended for further credits, what he says must be submitted to the jury along with the evidence of his admissions arising from his silence as to the items.
ASSUMPSIT for the balance of an account, tried before his honor Judge SEAWELL, at Randolph, on the last Fall Circuit. The account had a credit as well as debit side. The plaintiff to prove the debit side of the account, gave evidence that the defendant was furnished with a copy of the account, that he then stated that the articles had many of them been gotten by his family, that he would take it home with him, and then insisted that he was entitled to further credits; that shortly afterwards the defendant returned to the clerk who had furnished the account, and had called for payment, and then stated, that he was entitled to further credits, and produced a statement of such others as he claimed, and insisted upon their being allowed. The clerk proved that neither at that time, or any other, did the defendant ever dispute any article in the account, but only insisted upon further credits. The defendant gave no evidence in support of the further credits, but claiming the benefit of all the credits, objected among other things that the account had not been sufficiently proved. The Judge instructed the jury that, when an account was furnished to the party against whom it was raised, and the party after taking it and having time to examine its correctness, made no objection against any of the charges, but only claimed further credits, that was evidence to a jury of his admission of the justice of the account.
The jury found a verdict for the plaintiff for the whole amount of his account, and the defendant appealed.
No counsel appeared for the plaintiff.
Mendenhall for the defendant.
— The Court instructed the jury that where an account was furnished to the party against whom it was raised, and the party after examining its correctness, made no objection against any of the charges, but only claimed further credits, that was evidence to a jury of his admission of the justness of the account.
In general an admission may be presumed, not only from the declaration of a party, but even from his acquiescence or silence; as, for instance, where the existence of the debt, or of the particular right has been asserted in his presence, and he has not contradicted it, (2 Starkie, 37). But the defendant in this case, neither acquiesced, nor was he silent. He claimed further credits, and exhibited an account containing the items of them. What he said, taken altogether, was not an admission of the account as it then stood. The admission or confession of a party must be taken together, and not by parts. As, if to prove a debt it be sworn that the debtor confessed it, but withal said at the time that he had paid it; his confession shall be evidence as to the payment as well as that he once owed the debt. This case is within the principle decided in the case of Jacobs v. Farrell, (2 Hawks. 570,) where the defendant admitted the justice of an account, but at the same time produced an account of equal amount against the plaintiff, which he alleged was correct; it was held, that all the defendant said must be taken together, and left to the jury to believe such parts as they may think proper. It still rests with the jury to decide whether they will believe the whole of it; for the matter of discharge may be rendered so improbable by circumstances, as to make it unworthy of credit, while the other part may be sufficient to charge the defendant.
PER CURIAM. Judgment reversed.