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Merchants' Bank v. Curtiss.

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counsel to charge the jury that the defendant was in this action entitled to no deduction or allowance on the damages, account of the payments made by Cromwell to the plaintiff, or his agreement to pay or indemnify the plaintiff; and he did so rule, decide and instruct the jury. The counsel for the defendant requested the court, among other things, to charge the jury that if they found that the defendant and Cromwell were both engaged in practicing a fraud upon the plaintiff, then the amount paid by Cromwell to the plaintiff on his bond, and the judgment thereon, was to be allowed on the cause of action, or in diminution of the damages to that amount. The court declined so to charge, on the ground that there was no evidence to warrant the jury in finding that Cromwell was engaged with the defendant in practicing the fraud. The counsel for the defendant then requested the court to charge that if the jury found that the defendant and Cromwell together practiced the fraud upon the plaintiff, and that the plaintiff charged it on Cromwell, and he and Trowbridge executed their bond to the bank in settlement and satisfaction of the cause of action then existing, the plaintiff was not entitled to recover; which instruction was refused, for the reason before alleged. The judge did charge that if the plaintiff was entitled to recover, the amount of the recovery should be the amount of the mortgage debt and interest to the day of the mortgage sale, less the payments of interest thereon, and the fair cash value of the mortgaged premises at the time the mortgage was given; and was not to be affected by the bond given by Trowbridge and Cromwell to the plaintiff, or the judgment thereon, or the payments made by Cromwell; that these were to be left entirely out of the case, in assessing the damages. The defendant, by his counsel, in due time and form excepted severally to these rulings and decisions and refusals to charge as requested, and the jury found a verdict for the plaintiff for $4381.67.

The principle that a party may have several remedies against wrongdoers, but can have but one satisfaction, was

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Merchants' Bank v. Curtiss.

recognized by the judge, at the trial. It is well settled that an accord and satisfaction by one of several obligors or wrongdoers is a satisfaction as to all. (Strang v. Holmes, 7 Cowen, 224. Knickerbacker v. Colver, 8 id. 111.) It follows that a partial satisfaction by one of several wrongdoers is a satisfaction, pro tanto, as to all. The rulings at the circuit were based upon a supposed want of evidence to connect Cromwell with the fraud; the learned justice being of the opinion that there was no evidence to be submitted to the jury upon that point. In this I think the judge erred. Assuming, without deciding, that the evidence warranted the verdict of the jury against the defendant, the same evidence tended to show guilty complicity on the part of Cromwell, in the fraud. We are not called upon to pass on the sufficiency of the evidence to connect Cromwell; but if there was any evidence, it should have been submitted to the jury with the instructions asked for by the defendant. The entire negotiation was conducted by Cromwell, and all the representations as to the situation and value of the premises proposed to be mortgaged were made by him. He drew the affidavit of the appraisers, and delivered the mortgage to the plaintiff, and received the money loaned upon it. He was, or professed to the plaintiff's agent to be, familiar with the mortgaged premises, and went with the agent to inspect them; and the agent swears that he pointed out the boundaries of the homestead farm proposed to be mortgaged with other premises. And the other evidence in the case shows that those boundaries were not the true boundaries, but grossly erroneous, and must have been known by Cromwell not to have been the true boundaries. Cromwell says that Hazen in his presence pointed out and described the premises to the plaintiff. There is no evidence that the defendant ever saw the mortgage, or knew what premises were included in it; but Cromwell admits, and all the evidence shows, that the mortgage and all the papers passed through his hands. When called upon by the plaintiff, after a discovery of the fraud, he at once, without any adequate mo

Wilson v. Pope.

tive, unless he was chargeable with some fraud, gave his own bond for the payment of the mortgage debt of $5000 and interest. There was evidence tending to show, and for the consideration of the jury, that the homestead farm was not and could not, by reason of other incumbrances, have been included in the mortgage to the plaintiff. His claim that he acted upon the instance of the defendant, was no protection to him for the fraud, if he participated in it. In torts all are principals, and one cannot claim indemnity from the other. The question of fact should have been submitted to the jury, and they should have been instructed in accordance with the requests of the defendant's counsel. Upon Oromwell's own statement the evidence of fraud was as strong against him as it was against the defendant; and the judge erred in holding that there was no evidence to be submitted to the jury upon that subject.

The judgment must be reversed, and a new trial granted; costs to abide the event.

MULLIN and MORGAN, Justices, concurred.

Bacon, J. dissented.

New trial granted.

[ONONDAGA GENERAL TERM, October 1, 1861. Bacon, Allen, Mullin and Morgan, Justices.)

Wilson, adm’r de bonis non, &c., vs. POPE.

In an action upon a bond, the obligor proved the payment, by him, of the

principal and interest due thereon, in February, 1857. To overcome this proof, the plaintiff was allowed to prove an indorsement upon the bond, in the handwriting of the obligee, dated in February, 1858, of a payment of the interest then due; also the declarations of the obligee, made in March, 1858, before going to the house of the obligor, and while on his way there, in the absence of the obligor, that the bond was still unpaid, and that he VOL. XXXVII.

21

Wilson v. Pope.

was going for his interest upon it. Held that these acts and declarations of the obligee were inadmissible, under the general rules of evidence which exclude the acts and declarations of a party, made in the absence of his adversary, as evidence in his own favor; they not being in any sense a part of the res gesta, or of any transaction with the obligor. MORGAN, J. dis

sented. Held, also, that whether the indorsement made in 1858 was or was not favora

ble to the party making it, depended entirely upon the question whether the principal debt was paid in 1857, which was the issue to be determined ; and hence the indorsement could not be legitimate evidence to establish the fact, to wit, the non-payment in 1857, upon which it depended for admis

sibility. Held, further, that evidence showing the amount of money deposited by the

obligee in the bank with which he kept an account during the months of February and March, 1857, was inadmissible; the inference that he did not receive the money, because he did not deposit it in a particular bank, being too remote.

MAIS was an action upon a bond given by the defendant to

Noah Stern, deceased, dated February 28, 1849, conditioned for the payment of $600 in payments of $200 each, on the 1st days of March, 1853, 1854 and 1855, with interest annually. It was admitted that the interest had been

regu larly paid up to and including February 28, 1857; and the defendant claimed and alleged that on that day he paid both principal and interest to the obligee. The obligee died July 18, 1858, and the bond and the accompanying mortgage were found among his papers, with other vouchers of a like character. Upon the trial, before MORGAN, justice, the plaintiff produced the bond and mortgage, and upon the bond were indorsements of the annual payments of interest for each year; the last of which was dated February 28, 1858. The plaintiff was permitted to prove, under objection and exception by the defendant, that the several indorsements were in the handwriting of the deceased obligee; and under a like objection and exception he was permitted to read the indorsements to the jury; the justice presiding ruling that the indorsements on the bond, including that of 1858, were competent evidence. There were other dealings between the defendant and the obligee, and in March, 1858, the obligee was

Wilson v. Pope.

at the house of the defendant, and evidence was given of a payment of money, on that occasion, by the defendant to him, and the defendant gave evidence tending to prove that such payment was made upon other indebtedness. The plaintiff was allowed to prove, under objection and exception by the defendant, the declarations of the obligee before going to the house of the defendant, and on his way there, and in the absence of the defendant, that the bond was still unpaid and that he was going for his interest upon it. Under a like objection and exception the plaintiff proved the amount of money deposited by the obligee, in the bank with which he kept an account, during the months of February and March, 1857. The jury rendered a verdict for the plaintiff for the full amount of the bond and interest, and the defendant, upon a bill of exceptions, moved for a new trial.

D. M. K. Johnson, for the defendant.

F. Kernan, for the plaintiff.

ALLEN, J. The acts and declarations of the plaintiff's testator, the obligee in the bond, which were given in evidence to the jury to overcome the proof of payment in February, 1857, were inadmissible under the general rules of evidence which exclude the acts and declarations of a party made in the absence of his adversary, as evidence in his own favor. The declarations of a third person entirely disinterested are ordinarily inadmissible as evidence of the facts stated, and the individual must be called as a witness, if living; and if deceased, his declarations are nevertheless excluded, as they would be but hearsay and secondary evidence of the alleged facts. Unless, then, the evidence offered and given comes within some of the very few exceptions to the general rules referred to, it should have been excluded, and its admission was error. In a single class of cases the acts of a party in interest, in the ordinary course of business, and when proved

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