Remsey v. Duke

Per Curiam,

Mason, Chief Justice.

The first question to be decided is, whether the court below erred in permitting the witness to refer to the written instrument, under the circumstances set forth in the bill of exceptions. We think not. The plaintiff was seeking to establish an indebtedness for the sale of an improvement on the public lands. The terms of that agreement so far as the payment was concerned, were set forth in this instrument, and it was not only permissible for the witness to voter to it, but that was the only regular way of proceeding, as soon as it should have appeared that this paper was thus connected with the transaction, it is true that it would seem from the bill of exceptions that the main object in permitting the witness to refer to the paper was, to enable him to state the terms of the contract, when in fact the real purpose should have been to identify the note with the transaction of the sale. Still we think a mistake of this kind is no ground of error, it was proper that the witness should examine the paper, in order to testify what he afterwards did in relation thereto, and the proceedings below iu this respect were therefore substantially correct.

But another objection is taken on account of the fact that the court refused to instruct the jury “ that if they were satisfied that there was an outstanding agreement in writing for the payment of the purchase money for said claim, he cannot recover under the third count, even though said agreement be delivered up at the time of trial to be cancelled, as in this case.” We think this refusal correct. It is every where held that a promissory note not only does not prevent a recovery on the count for an account stated, when the same money, for securing which the note had been given, is sought to be collected by declaring in that manner, but that such note is all the evidence that would be necessary to sustain such a count. For ought that appears the “ outstanding agreement” supposed in the bill of exceptions may have been a promissory note.— But even if we can regularly regard it as applying to the instrument set forth in the bill of particulars in this case, there is still no error made to appear. If the lands on which the plaintiff below resided at the time of the land sales had been sold prior to the commencement of this suit, we think the instrument was evidence under the declaration. At all events it would not stand in the way of a recovery. As the plaintiff in error must make out an affirmative case before he can claim a reversal he should have set forth all the circumstances necessary to constitute error. If the lands aforesaid had not been sold the evidence of such fact must be made to appear before we can reverse the judgment of the District Court.

Judgment affirmed.