M'Nutt v. Dare

Dewey, J.

M‘Nutt and Cummins sued Dare in assumpsit for money had and received. Plea, the general issue. Verdict and judgment for the defendant;

Previously to the trial, Dare filed a bill in equity for a discovery against M‘Nutt and Cummins, alleging that the action at law was commenced for the recovery of a part of a sum of money, which M‘Nutt and Cummins affirmed they had advanced to Dare as their agent, for the purpose of purchasing for them a steam-engine, and which they claimed had not all been expended in the purchase; that Dare had received of M‘Nutt and Cummins 2,100 dollars, not as their agent, but under a written contract between the parties, by which Dare was bound to furnish the engine and M‘Nutt and Cummins to pay him for it that sum; and that the contract was in the possession of M‘Nutt and Cummins. The bill prayed for a discovery, that the contract might be made a part of the answer, and be read with the rest of the answer on the trial of the action at law.

M‘Nutt and Cummins, in their answer, admit that the object of the suit at law was as stated in the bill; deny that they ever made any written contract with Dare respecting the engine, but concede that Dare executed such an instrument of writing as is stated in the bill, and left it in the possession of M‘Nutt and Gummins, who never executed or became a party to it; admit they paid Dare 2,100 dollars at the times stipulated in the instrument, but insist the payments were not made by virtue of that instrument or any written contract, but were advances to Dare as their agent, to enable *36 him to purchase the engine for them, the price of which he fraudulently represented as greater than it really was. The instrument was made a part of their answer and produced in Court as such.

On the trial of the action at law, Dare offered the instrument thus produced in evidence. It commenced, “July 8th, 1839. Lee Dare, of the first part, does agree to build, or cause to be built, an engine, namely, &c. (describing it), and put the same in good operation, for the price of twenty-one hundred dollars,” &c. Then follows — 1'•'■John M‘Nutt and William Cummins, of the second part, do agree to pay the said Lee Dare the above sum.” The times of the payment in instalments are then specified. The instrument was subscribed by Dare only, though there was partial proof that it was written by one of the plaintiffs, who were partners. The plaintiffs objected to the reading of the writing unless the whole answer was permitted to be read. The Court overruled the objection and admitted the writing in evidence, but rejected the rest of the answer.

It is contended that the Court erred in permitting the writing to go to the jury, because it was not a valid contract between the parties for want of mutuality, it being signed by one party only.

We do not deem it necessary to decide whether the instrument constituted a valid contract or not; because admitting it not to have been a binding contract, capable of being enforced by suit, still if its stipulations were performed by both parties in good faith, it was legal evidence tending to show on what terms the engine was furnished on the one hand, and the money paid on the other; it tended to show the nature of the transaction involved in the suit. There is another reason why the plaintiffs could not object to the evidence. It was a part of their own answer to the bill of discovery; and the answer of a party is legal evidence against him. Bull. N. P. 237.-2 Bac. Abr. Ev. 621.

But the Court committed an error in refusing to permit the whole answer to be read. If part of an answer of a defendant in chancery is read at law against him, he is entitled to have the whole answer go to the jury, who are to weigh it as they do other testimony, and give it such credit as they *37 may think, under all the circumstances, it deserves. Bull. N. P. 238. — 2 Bac. Abr. Ev. 621. — Butterworth v. Bailey, 15 Ves. 358. — Earl of Bath v. Battersey, 5 Mod. 9. — Bermon v. Woodbridge, 2 Doug. 788.

J. Hyman, for the plaintiffs. G. Holland, for the defendant.

There was another question raised on the trial as to the admissibility of evidence, which was correctly decided by the Court, and need not be further noticed.

Per' Gziriam.

The judgment is reversed with costs. Cause remanded, &c.