McClave v. Maynard

Ingraham, J.

I think the referee erred in excluding the evidence offered at folio 51. The question was, what was said between "them when the defendant received the letter from McClave. This was excluded.

Previous to that, McClave had on proof of his letter to defendant saying that he would accept Mr. Beach's promise to pay the commissions, stated that at that time he was not informed as to the exact amount that had passed between them, and he was also permitted to state what his suppositions were when he wrote that letter. It was clearly the right of the defendant to show what conversation passed between them when the letter was delivered. It was not negotiation previous to writing the letter, but what took place, when defendant received it.

In addition to this, if the defendant acted on the plain tiffs letter, and was guilty of no fraud, it would be immaterial what the plaintiff supposed was the amount. He chose to take Beach for his pay-master rather than have the contract fail, and on his promise to do so the defendant acted.

If Beach deceived him, the plaintiff is not responsible.

The judgment should be reversed, and case6 referred back to referee.

Leonard, J.

The evidence excluded at fol. 51 was admissible. It related to an admission by plaintiff, and was offered by defendant.' Anything said by the plaintiff relating to the subject in the controversy was admissible, when offered by defendant.

The judgment should be reversed, costs to abide the event.