Clendenning & Bulkley v. Ross , 3 Stew. & P. 267 ( 1833 )

.Taylor, J.

The action in this case is- indebitatus assumpsit, on the common money counts. On the trial, the plaintiffs offered' to read to the jury, a letter, written by the defendant, to Samuel Acre, Esq., the attorney at law of the plaintiffs, dated in March, 1825, declaring his inability to pay the amount of certain promissory notes, which the plaintiffs held against him, and'informing him, that, if the plaintiffs would agree to receive one third of their débt, the friends of the defendant would pay it, on the plaintiffs’ finally discharging the defendant-: the letter contains the following sentence — “ And, in the mean time, I assure you, that, should fortune smile upon me, so as to enable me to pay them, they shall receive every dollar, notwithstanding the notes may all be given up.”.

The court refused to permit this letter to be read, as evidence, to the jury, and it is this opinion which we are called upon to revise.

The object of the plaintiffs, in offering the letter, does not appear, in the record. It no where appears, whether the terms offered, by the defendant, were acceded to or not. It is true, the counsel for the plaintiffs tells us, a compromise was effected between the parties, on the terms proposed, and the notes given up to the defendant; and that this suit is brought, to recover the balance of the debt on tbe promise contained in the letter of the defendant, that, “if foriune smiled upon him,” he would pay it: that the letter was offered as the first link in the chain of testimony, and, if admitted, it would have been succeeded by proof, that “ fortune bad smiled upon” tbe defendant, and he was amply able to make payment.

We do not doubt the sincerity of the counsel, but we think the record should show the competency of the evidence.

Admitting the right of the plaintiffs to recover according to the statement of the counsel', and it is not considered necessary to examine this subject, some ground should have been laid for this evidence, by first proving tbe (Compromise, upon which the promise was based.

■ -But there Is nothing in the record, to contradict the idea, that it was intended to offer the notes themselves as evidence, and that this letter was produced as proof of their execution, on that they had been introduced, and it became necessary, from -countervailing testimony of the defendant, to prove, that the sums specified in them were still subsisting debts. If such had been the fact, the letter was properly rejected, as it contained a proposition for compromise, and unless that compromise was effected, could not be made evidence against the defendant.

As the case has not been argued, we avoid the expression of an opinion on any point, not necessary to be considered in disposing of it.

Let the judgment be affirmed.