COURT OF APPEALS.

#### Perry G. Tanner, respondent agt. Anson C. Parshall, appellant.

. Where the principal question litigated upon the trial was, whether the plaintiff sold his horse to the defendant for $500, or whethei* he was delivered to the defendant to be taken to New York by a third person and sold on plaintiff’s account, and the testimony of the plaintiff and defendant was directly in conflict upon the question:

*Seldy*that the plaintiff was properly permitted to show that, on the same day that he claimed to have sold the horse to the defendant, he went to his (plaintiff's) store, and, in the absence of the defendant, made an entry in his book of accounts,, charging the defendant with the horse, at $500, and that he *subsequently*exhibited this entry to the defendant, who admitted its accuracy. (Grover, J., *dissenting.)*

*March*Term, 1867.

This is an appeal by the defendant from a judgment of the supreme court, rendered in the sixth district, in favor of the plaintiff. The action was brought to recover the purchase price of a horse alleged to have been sold and delivered to the defendant in September, 1856, and came on for a second trial at the Otsego circuit, in June, 1860. The principal question litigated on the trial was, whether the horse was sold to the defendant for $500, or whether he was delivered to the defendant to be taken to New York by one Baird and sold on plaintiff's account; and on this question the testimony of the plaintiff and defendant was directly in conflict, and, with other evidence more or less bearing upon the truth of the version of either party, was submitted to the jury, who found for the plaintiff. On the trial the plaintiff, *473under the objection and exception of the defendant, was permitted to show that, on the same day that he claimed to have sold the horse to the defendant, he went to his store, and, in the absence of the defendant, made an entry in his book of accounts, charging the defendant with the horse, at $500, and that he subsequently exhibited this entry to the defendant, who admitted its accuracy. The judge allowed the entry to be read to the jury, and charged that it was a circumstance tending to prove the alleged sale. The principal question in the case is, whether this evidence was properly admitted. There are some other questions arising upon the admission and rejection of evidence.

John H. Reynolds, *for appellant.*

L. J. BratDETT, *for respondent.*

Hunt, J.

This case was eminently one for the jury. We have nothing to do with the decision. ' We accept it as the correct determination of the disputed facts before them. The legal proposition before us is quite simple. We are not called upon to decide whether the entry by the plaintiff of the sale of the horse to the defendant, in the plaintiff’s book, was part of the *res*gestee, nor are we to decide whether the entry above would have been *competent*evidence. Here the offer to read the entry was accompanied by the offer, also, to prove that .the *entry*was subsequently read *to*the defendant, and that he admitted its correctness. That a statement by *the*plaintiff *to the*defendant, whether verbal or written, charging the latter with the purchase of a horse, at the agreed price of $500, which statement was then assented to by the defendant, is competent evidence against the latter, would seem to be too. plain a proposition for discussion. " The offer, as made, was proved, and was corroborated by the defendant, so far as that he admitted that the statement was read over to him. He denied that he admitted its correctness, of promised to pay it. The charge to the jury was *474upon the same subject matter, and in reference to the whole of the same. I think there could have been no misleading of the jury, and no misunderstanding by them of the questions before them. The judge further charged the jury that, in determining whether the defendant bought the horse and agreed to pay $500 for him, they had no right to take into consideration the actual value, or the unsoundness of'the horse, as a circumstance bearing on that question. If the jury had been engaged in deciding whether the defendant had made a good bargain in purchasing the horse, such evidence would have been material. So if there had been inquiry whether there had been a breach of an alleged warranty of soundness, the evidence referred to would have been important. But it was entirely immaterial upon the question whether the defendant had purchased the horse, or had received him from the plaintiff to sell on his account. As a legal proposition, it could have no tendency to establish-either a sale or an agency. There was no error in the instruction to the jury. Neither was there any error in this instruction, that if the defendant heard the remark which the plaintiff’s daughter testified that the father made to her, ‘‘that he had sold Billy,” and did not deny it, it was complete evidence. The presence of the parties there, the taking away of the horse by the defendant, would justify the jury in applying the remark to the horse in question.

Judgmént should be affirmed.

Grover, J. (dissenting.)

No question was made but -that the testimony of the plaintiff, that he read the entry on his book charging the horse to the defendant, at five hundred dollars, and that the latter promised to pay it, was competent. But did this render competent- the additional testimony of the plaintiff, that he made the entry immediately after the alleged sale. The case shows that this latter testimony was used as independent evidence of a sale of the horse by the plaintiff to the defendant. It appears from the *475charge that the jury were told by the learned justice that, if the plaintiff made a memorandum or entry of the sale immediately after he got down to the store, it would be a circumstance tending to show the alleged sale. The question is whether the evidence was competent for this purpose. If it was, the charge was correct. If not, the reception of the evidence, and the charge, were erroneous. The only point in issue was, whether the defendant purchased the horse of the plaintiff. Upon this point the evidence was conflicting. The inquiry is, whether reading the entry or charge to the defendant a long time afterwards, and his promise to pay the amount, rendered testimony that the entry was made by plaintiff immediately after his arrival at the store, after the alleged sale, competent evidence of such sale. The testimony of the defendant denying such promise, and that he emphatically repudiated the claim, can have no bearing upon the question. It was for the jury to determine as to the credibility of the witnesses, and the duty of the judge, in deciding upon the competency of evidence, to regard the testimony of each as possibly true. It is an elementary principle that a party cannot give his own acts or declarations in evidence- in his own favor, unless a part of the *res gestae.*Making the charge was no part of the transaction between the parties, and not, therefore, admissible upon that ground. How can the alleged promise of payment by the defendant make the time when the charge was made by plaintiff, or the fact that it was made by him, admissible evidence against the defendant? What the defendant had the right of proving was, what occurred between the parties at the time the entry was made, and this as an admission of the defendant. This could not make any other evidence competent, unless necessary to explain the admission which that admission referred to, and which the circumstances showed was referred to in the conversation. This did not include the time of making the charge, or who made it. Evidence, I think, of these latter facts was incompetent, and its admission error *476Evidence of another person was received, that he saw the entry on the book shortly after the delivery of the horse. This was also incompetent. In reference to this evidence, the judge charged the jury that making the charge by plaintiff, immediately upon his return to the store, was evidence of a sale of the horse. This, I think, was also error. This part of the charge was not qualified by stating that it would be evidence provided the jury believed that the defendant had promised to pay subsequently. It would not have been correct if so qualified. There was no pretence- that the defendant made any admission of the time when the charge was made, or by whom. The case shows that the defendant might have been prejudiced by this evidence. When the issue was, whether the horse was sold to the defendant, or whether he was to deliver him to Baird to take to Hew York and sell on plaintiff’s account, proof that the plaintiff made such a charge directly after the transaction, and before any dispute arose, might have a controlling effect upon the jury. I think proof of the chattel mortgage given by Baird to defendant also inadmissible. These transactions between Baird and defendant had no tendency to show upon what terms the defendant received the horse in question. The only effect produced thereby would be, possibly, to create a prejudice in the minds of the jury against the defendant.

I think the judgment should be reversed and a new trial ordered.

Concurring in the opinion of Hunt, J., Porter, Wright, Scrugham, Bockes and Parker, Judges, and Davies, Ch. J.

Judgment affirmed.