author: Jones, C. J.

text:
    Andre Anthoine and J. M. Marais, versus John Coit.
    If improper evidence, objected to at the trial of a cause, be permitted by the Judge to go to the jury, the verdict will be set aside and a new trial granted, notwithstanding there was sufficient competent testimony to warrant the finding of the jury and to sustain their verdict.
    In proving an account of sales made by the plaintiffs for the defendant, certain letters from the former to the latter, were read to the jury, with the permission of the presiding Judge not as evidence of the facts therein contained, but as notice of facts which might bo binding upon the defendant if his assent to them could be proved. Held, that these letters came within the rule which excludes a party from testifying in his own favour, and were improperly admitted. Held also, that although, the verdict in all probability would have been the same without the letters as with them; still a now trial must bo granted, because the effect of the improper evidence upon the jury, could not be known by the Court.
    This was was an action of assumpsit tried before Mr, Justice Hoffman, to recover the balance of the proceeds of a certain consignment of Brandy made by the plaintiffs to the defendant. For the facts of the case, the reader is referred to the opinion of the Chief Justice (where they are fully stated) and to the preceding marginal note.
    Upon the trial of the cause, the jury having found a verdict in favor of the plaintiffs, a motion to set the verdict aside, and for a new trial, was made upon the grotmd of the admission of improper evidence by the Judge, and the same was now argued by Mr. Warner for the defendant and Mr. Anthon for the plaintiffs.
    For the defendant it was contended, that there was no evidence to warrant the jury in finding that the cotton sent by the plaintiffs toJLisle was sold at all, except an assertion of that fact contained in their own letters. These letters were mere declarations made by the parties in their own favor, and were not competent evidence to prove a fact indispensable to the plaintiffs’ right of recovery. If the truth of that fact had been expressly admitted by the defendant, after the receipt of the letters, then the evidence of such admission might have been received: it could not be inferred from his mere silence. The assertions in the letter, are not to be viewed in the light of an account rendered without objection, for the defendant could not with propriety contradict an assertion which might possibly be true; and no inference is to be drawn against him on that account. Improper items in an account, may of course be pointed out and objected to, but the defendant was not bound to contradict the fact of the sale at the peril of being held to have admitted it by his silence. This testimony therefore was improperly admitted, and a new trial must be granted ; for a party’s own letters cannot be given in evidence by him to prove a substantive fact, although they be, perhaps, for the mere purposes of notice. [I. John's R. 160.]
    In this case the plaintiffs did not prove the sale of the cotton at Lisle in any way except by their own declarations, and these can never be permitted to form the .principal ground of a recovery by them.
    II. But if the fact of the sale were, in the opinion' of the Court, proved by testimony other than that furnished by the plaintiffs’ letters, still there must be a new trial to correct the error of the Judge in admitting improper evidence. It is not the province op the Court to weigh the evidence in questions of fact.—The jury are to do this, and it is the business of the Court to see that no improper evidence is spread before them.
    If improper testimony is laid before the jury, objected to at the trial, and yet admitted by the Judge, a new trial must be granted, in order to exclude the evidence which ought not to have been admitted. The impression made upon the jury by such evidence cannot be known by the Court, and of course they can have no discretion in judging of its weight. If it is incompetent testimony, it must be excluded wholly, and if admitted against the objections made to it, a new trial will be granted. This has been the uniform practice in our courts, at least since the case of JVIarquand v. Webb, [16 J. R. 89,] and there have been no exceptions to it.

      Mr. Anthon, contra,

    remarked that the objection to the testimony offered at the trial, was confined entirely to the proof of the sale of the cotton at Lisle. One of the letters from the plaintiffs to the defendant, referred to an account of sales enclosed, and the Judge suffered it to go to the jury merely as notice. The defendant was fully apprised of the sale, and he never questioned it. When called upon by Mr. Kneeland, he made no objection to the plaintiffs’ demand, upon the ground that the sales were not closed, but he said they had violated his orders, by holding the cotton too long. This was an admission that the cotton had been sold, and the letters read were but the assertions of the plaintiffs, assented to by the defendant. If the plaintiffs had communicated with the defendant orally, and had stated the fact of the sale in his. presence, and he had made the reply which he did in fact make to Kneeland, might not the declarations of the plaintiffs have been proved for the purpose of explaining the defendant’s reply 1 Conversations between parties are always admitted under such circumstances, and the letters in question were admissible for the same purpose. After the lapse of time .which has intervened in this case since the forwarding of the accounts, the Court will infer an assent and acquiescence on the part of the defendant. [Willis v. Jernegan, 2 Atkn. 251. 1 Cowen’s R. 645.
      Leverick v. Meigs Reed. 3 Cowen’s R. 7 Ib. 456, La Farge v. Kneeland. 6 Ib. 133, Bell v. Palmer.]
    II. There is testimony enough in the cause to warrant the finding of the jury, without the letters, and if this be the case, the Court ought not to grant a new trial. That the cotton sent to Lisle was sold, and that the plantiffs have proved it, and can prove it again, there can be no doubt. The testimony of Kneeland alone is sufficient to establish that fact, and the jury again, upon the same evidence, leaving out the letters, would find the same verdict. Where the facts are fully proved by competent testimony, there can be no good reason for granting a new trial, because a little unimportant evidence, not strictly legal, happened to creep in at the trial. Suppose, in addition to the letters read at the trial, the plaintiffs had produced another letter from the defendant to themselves, admitting the sale of the cotton in express terms, would the Court grant a new trial for the purpose of shutting out the letters of the plaintiffs 1 The rule contended for goes to this extent, and it has no foundation in justice or good sense. The case of Marquand v. Webb, does not necessarily go the length of this case, and the rule there laid down ought not to be extended. The decision of the Judge at the trial was correct in principle, and its application to the case under consideration was entirely proper. But even if not strictly correct, anew trial, which never can vary the result of the cause, ought not to be granted.
   Jones, C. J.

This was a motion for a new trial, on the ground of the admission of illegal testimony, and the misdirection of the Judge to the jury.

The plaintiffs’ demand was for the surplus and balance of the nett proceeds of a consignment of brandy, shipped by them to the defendant, over and above the net proceeds of a consignment of cotton received by them from him, for sale for his account and risk, and sold by them.

The defence was, that the brandy was a remittance in anticipation of the proceeds of the sale of the cotton, to be reimbursed out of those proceeds, when the cotton should be sold ; and that the cotton, when received by the plaintiffs, was worth more money in the market to which it was sent, and if sold in conformity with the instructions of the defendant, would have produced a larger amount of net proceeds than the price and value of the brandy; but that the plaintiffs had, in disregard of the orders of the defendant, and contrary to their duty as factors, so neglected and delayed the sales of the cotton, and retained and kept the same so long on hand unsold, that the same was greatly reduced in value, and was lost to him, by which misconduct, they had made the cotton their own, and become chargeable and accountable to him for the market value of the same at the time of the consignment, 'which was more than sufficient to satisfy the balance claimed of him on the sales of the brandy.

It appeared by the testimony of the plaintiffs’ witnesses, that the plaintiffs, in December, 1818, received from the defendant a consignment of seventeen bales of cotton, for sale on his account, accompanied by a letter of the date of October 9th, 1818, advising of the shipment, in which letter, speaking of the consignment, he has this observation: “ I believe you will think with “ me that it will be best not to hold on too long, as the new crops “ of cotton will be shipping in the course of a month or six weeks. “ I shall be well satisfied if this shipment produces net amount of “ invoice. I trust entirely to your good judgment in effecting sales, “ without fixing any limitation. The proceeds please return in brandy, the same as Messrs. Bogert and Kneeland order for the “ proceeds of the shipment by the same vessel.”

By a letter from the defendant to the plaintiffs, of the 10th of October, 1818, he observes that it was very likely he might spend part of the then ensuing winter in Georgia or New-Orleans, and he therefore requested them to invest the proceeds of his cotton in brandy, the same as Messrs. B. & K. had ordered for their account, and include it in the same bill of lading consigned to them, making at the same time a distinct invoice for his parcel.

The cotton arrived to a dull market, and the prices were merely nominal. The plaintiffs held the defendant’s parcel at the price which had been obtained on the last sales, at which it was offered, but no sales were effected. But eighteen pipes of brandy were shipped by them to the defendant, in anticipation of the proceeds of the cotton, and charged to the defendant’s account. The brandy was invoiced as a shipment for the account and risk of the defendant.

The cotton remained a longtime on hand unsold; and after various ineffectual efforts to dispose of the same, of which the defendant was constantly kept advised, and his advice and special direction solicited for their government, sales were finally effected of ten bales at reduced prices, and accounts of the sales rendered by the factors. The remaining seven bales being wholly unsaleable at Nantz at any price, were sent by them to Lisle for a market. At the trial, the defendant failed in his claims to charge the factors with the value of the cotton in controversy, the Court being of opinion that they had been in no default: and in the form the controversy took, the question between the parties was finally reduced to the sufficiency of the proof of the sale of the seven bales sent to Lisle, and the prices for which the same were sold.

A long correspondence betweeen the parties, consisting however, almost exclusively of letters from the plaintiffs to the defendant, was in evidence; but it is not material to this motion to give the dates or contents of any of these letters, except those of the 7th May, 1822, and 26th March, 1823, which were made the subject of special exception. The letter of the 7th May, 1822, advised the defendant of the sale of the seven bales of cotton sent to Lisle by the plaintiffs’ correspondent at that place, for $190; this letter professes to enclose account sales of the whole consignment of seventeen bales, and a copy of the account sales made at Lisle, and advises the defendant of a draft upon him for $1267 25-100 at sixty days, as the balance of the account against him. The letter of the 26th March, 1823, which closes the correspondence, complains of the defendant’s silence, and of the dishonour of the plaintiffs’ draft upon him for the balance of the account, and informs him that powers were sent to Bogert and Kneelajnd to collect the amount.

Annexed to the deposition of Bellaire, the plaintiffs’ clerk, taken under a commission, was an account abstracted from the plaintiffs’ books, purporting to be an account of the sales and proceeds of these seventeen bales of cotton, giving a detailed account of the items and particulars of the sales of the ten bales sold at Nantz; but the general results, or net proceeds only of the sales of the seven bales at Lisle.

At the trial, this deposition, and the letters from the plaintiffs to the defendant, were offered in evidence by the plaintiffs, and Henry Kneeland was produced as a witness, who testified that during the winter after the shipment, he was requested to urge the defendant to give further instructions about his cotton, on account of the difficulties in the market; that he did so urge him on various occasons; that the defendant gave no positive answer, but left witness under the impression that he would write. No evidence was given of the sale of the seven bales of cotton sent to Lisle, except the plaintiffs’ letters of the 22d May, 1822, and 26th March, 1823, and the accounts abstracted from the plaintiffs’ books. But Henry Kneeland testified, that after the sales were all closed, he handed the accounts to the defendant, who made no objection to any of them, merely saying that the plaintiffs had violated their instructions by holding on too long.

The defendant’s counsel objected to the testimony taken under the commission, and which comprised the copies of the letters of the plaintiffs, and the accounts abstracted from the books of the plaintiffs, as being illegal and improper evidence to be submitted to the jury, touching so much of the account dated Nantz, 17th May, 1822, as related to the seven bales and packs of cotton in the said account mentioned as having been sent to Lisle; and insisted that there was no legal evidence of the sale of the seven bales and packs at Lisle, and that the letters were not evidence of the facts contained in them. The Judge ruled that the letters were not evidence of the facts contained in them, but were notice of such facts, which might bind the defendant by his assent and acquiescence: and that as to the sale at Lisle, the letters and the rendering of the accounts, and the answers to Mr. Kneeland, were facts to go to the jury from which they might find such sale; that at all events, it was a question for them under the evidence, whether they were satisfied that such "sale had taken place, and he so instructed the jury, who found a verdict for the plaintiffs.

The material question is, whether the Judge was correct in his opinion and direction to the jury, that the letters of the plaintiffs were legal and proper evidence for them to take into the estimate in deciding upon the fact, of the sale at Lisle. These letters were the written declaration of the plaintiffs themselves, and would seem to come within the rule which excludes a party to the suit from testifying in his own favour. The plaintiffs could not have been received to testify on oath to the matters stated in their letters, and to admit the letters themselves as evidence of these matters, would be to give to a statement which has not the sanction of an oath, a credit in a court of justice, to which the same statement would not be entitled, if in the form of a deposition. The fact in dispute, was the sale of the seven bales of cotton at Lisle. The best evidence of that fact would have been the deposition of the agent, who made the sale, or of some clerk, agent, or other person at Lisle, who was conusant of it. Such testimony is always desirable, where any question is made of the fact, or any collateral matters may be subjects of inquiry, because it opens the field of investigation by the cross-examination of the witnesses. The mere accounts of sales are not competent evidence of the fact of sale ; they may be fictitious, or the mere cover of a fraudulent or indefensible disposition of the goods. The silence of the party to whom they are rendered, and his acquiescence in them, may be evidence to a jury of his tacit assent to tlieir reality and correctness, and may be held to conclude him. No actual proof of the fact of sale was made in this case. The substitute for it was the letters in question, and the testimony of Henry Kneeland.

Were the letters admissible, or could they in a legal sense have any weight in the scale of proof 1 And if not, could the direction of the Judge be correct, that from those letters, and the testimony of Kneeland, the jury were to form their conclusion upon the fact 1 These letters were well calculated to make an impression upon the jury, and if allowed the influence of legal proof, they must have been of decisive weight. They averred the fact of the sale in positive terms, and the writer of them was proved to be a man of integrity, and entitled to full credit for veracity. The jury, upon written evidence emanating from such a source, and so clear and explicit in its character, could not doubt or hesitate upon their verdict. If, then, those letters were illegal or inadmissible evidence for the proof of that fact, the Judge erred in the direction he gave, and the jury have acted under improper influence in coming to the result they did. It follows that a new trial must be granted, unless some redeeming circumstance has cured the fault, and given efficacy to the judgment of the jury.

It was contended that the other evidence in the cause was sufficient to establish the fact of the sale, and that the verdict must have been the same without the letters, as with them; and of that opinion is the Court. But notwithstanding the sufficiency of the proof of the rendition of the account to the defendant, and his answer to Kneeland, to establish the fact of the sale, and the correctness of the account of it, or such an implied admission of those matters, as to dispense with other proof, and entitle the plaintiffs to a verdict, yet the admission of improper evidence, and the direction of the Judge to the jury, to take the illegal as well as the legal evidence into consideration in deciding the question, on the authority of the case of Marquand v. Webb, [16 Johns. R. 89.] would vitiate the verdict.

In that case, B. Gomez, a part owner of a privateer, was admitted as a witness to prove that the defendant, who was sued for the expenses of repairs to the vessel, was also a part owner of her. Two other witnesses testified to the same fact, one of whom, a Mr. Briggs, the subsequent purchaser of the vessel, expressly proved that the defendant and others were the owners at the time of her repairs. The Court held that Gomez was an incompetent witness, and though the fact proved by him was proved by two other witnesses, they could not say that his evidence might be rejected as unnecessary; and as it appeared in the case, it vitiated the verdict, and the judgment was reversed, with directions that a venire de novo issue in the Court below.

The principle, as stated by Spencer, C. J., in the form of a quaere, was, that if improper evidence is admitted, though the other evidence may, in the opinion of, the Court, be fully sufficient to entitle the plaintiff to a recovery, the verdict must be set aside, because the Court is not authorized to say that the jury disregarded the improper evidence. If that case be law, and the principle it established be sound, how can this verdict stand 1 Suppose the other evidence in this cause, to establish beyond a doubt the fact, of sale, and the justice of the account, still the letters, the written declaration of the plaintiffs, were admitted, and the jury directed to consider them as part of the evidence to prove that fact. And if that evidence was inadmissible for that purpose, it vitiates the verdict; for we cannot know what weight was attached to it by the jury, nor how far it governed their opinion.

It may perhaps be proper to advert to the passing remark of Chief Justice Mansfield on this point, in Horford v. Wilson. [1 Taunton, 12.] In that case, parol evidence was admitted of the contents of a letter 6from the holder of a bill of exchange to the drawer giving him notice of the dishonour of the bill, the letter itself not being produced at the trial, nor any notice given to the defendant to produce it. Other evidence was produced by the plaintiff fully sufficient for the jury to presume notice, and it did not appear that the defendant had objected to the parol proof of the contents of the letter at the trial. But it was made the foundation of a motion for a new trial, and the Chief Justice upon the argument when the point was opened, interrupting the counsel, observed that he did not remember that any such objection was made upon the trial, and adds this remark, ‘e neither will the court set aside a verdict on account of the admission of evidence which ought not have been received, provided there be sufficient without it, to authorize the finding of the Jury.” No such notice is taken of the point in any part of the argument, or in the decision of the court. This dictum, for surely such must be its true appellation, must be understood in reference to the facts of the case, and to mean, that the admission of secondary evidence, or of such, which if objected to would have been excluded, but which was not objected to, is not a sufficient cause to set aside a verdict when the other facts in the cause were sufficient to support it: and the utmost to which the Chief Justice can be supposed to intend to carry his. position, is, that there may be cases of the admission of evidence which ought not in strictness to be received, where the verdict if otherwise sufficiently sustained will be suffered to stand. The learned Judge could not intend to affirm as a general proposition, that illegal evidence, improperly admitted by the Judge against the objection of the party, will not in any case vitiate the verdict, if the other evidence in the cause is sufficient to entitle the plaintiff to recover, or if he must necessarily be so understood, his opinion is in direct conflict with the decision of our own Supreme Court in a case which turned solely upon that point, and his authority, must in this court yield to that of our own Judges.

The case of Marquand v. Webb, does not rest upon the authority of the Supreme Court alone. It was confirmed by the Court for the correction of errors and made the basis of the decision of that Court in the case of Osgood v. The Manhattan Company. [3 Cowen R. 612.] Suydam, senator, who delivered the only opinion given in the case, referring to the case of Marquand v. Webb, expresses his concurrence in the principle it established. It is well settled, he says, that if improper evidence be given, although it may be cumulative only, the judgment must be reversed, for we cannot say what effect such evidence may have had on the minds of a jury, and he refers to the case of Marquand v. Webb, as a decisive authority upon the point. I am compelled therefore to come to the conclusion that the verdict must be set aside, though I see no reason for supposing that there can be a different result from another trial.

New trial granted.

Note.—Notwithstanding the case of Marquand v. Webb [16 J. R. 89] and that, Osgood v. The Manhattan In. Co. [3 Cowen’s R. 612.] there seems to be something unsettled as to the principal point of the case above decided. See 4 Wend. R. 458. Supervisors of Chenango, v. Birdsall. See also the case of Doe, dem. Lord Teynham v. Tyler, 6 Bingham, R. 561. The marginal note of the latter case is as follows. “ The Court will not grant a new trial on the ground that evidence has “ been admitted which ought to have been rejected, if, exclusive of such evidence, " there be enough to warrant the finding of the Jury.”


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    George Birkbeck, versus Silas E. Burrows.
    The plaintiff by a contract in writing, agreed to “ make and complete” for the defendant a steam engine, which he warranted against “ordinary ware” for the space of sixty days. After the engine was delivered, repairs were made upon it by the plaintiff, for. which he brought an action of assumpsit. At the the trial the defendant set up an award in his defence, and insisted that all matters in controversy between himself and the plaintiff had been submitted to an arbitrator. The award was not accompanied by any submission, and the plaintiff was permitted to call the arbitrator to prove that the submission, did not embrace the claims for for which this action was brought. Held, that as the submission was by parole, and as the award did not in terms cover all matters in controversy between the parties, the evidence of the arbitrator to shew what tho matters submitted were, was rightfully admitted.
    It having been proved by the plaintiff that the defendant had offered him a certain sum to settle the controversy between them, the defendant produced a copy of a letter from himself to the plaintiff,^explanatory of that offer. The writing was excluded by the presiding Judge, but the defendant was permitted to prove the fact, that he had made such a communication. Held, that the testimony thus offered by the defendant, being in effect Iris own declarations, was rightfully rejected.
    The arbitrator testified that when the parties were before him, a bill was presented specifying the accounts submitted ; a copy of which he transmitted to the plaintiff, accompanied.by the award : but the plaintiff denied that the account was received by him. Held that the plaintiff was not thereby precluded from introducing other evidence as to the items of his claims, unless the defendant could shew that the account came into his possession or under his control.
    The defendant offered to shew what articles enter into the composition of a “complete steam engine” and that many of those embraced in the plaintiff's bill were of that description. This evidence was excluded by the presiding Judge, and his decision was held to be correct.
    The Judge charged the jury that the award was conclusive as to every thing which had been submitted: and left them to say whether the items of the present claim had been before the arbitrator or not. If they had, then that their verdict should be for the defendant; but if they had not, then that their verdict would be for plaintiff. That by the agreement between the parties, the plaintiff was bound to make good all damages to the steam engine arising from ordinary wear for the space of sixty days : and that if any of the present charges were of that kind, they were to be excluded from the account. Held that the charge and ruling of the Judge were in all respects correct: but the jury having found a verdict for 8925 43, in favor of the plaintifij it was set aside (on payment of costs by the defendant) upon theground that substantial justice had mot been done to the defendant.
    Where a new trial is granted, not from any mistake or misdirection on the part of the Judge, but in consequence of an error or incorrect finding by the jury, the party moving to set aside the verdict, is bound to pay the costs.
    This was an application for a new trial on the part of the defendant. The action was originally brought to recover the amount of a bill, for work done and repairs made upon a certain steam engine and steam boat belonging to the defendant; the declaration containing merely the common counts in assumpsit for work, labour and materials.
    The cause was tried before the Chief Justice. At the trial the plaintiff gave in evidence his books of accounts, from which his bill of particulars had been copied, and called witnesses to prove the performance of the services, and the correctness of his charges.
    The account commenced on the 9 th of April 1825, and ended on the 23d of July following. The plaintiff also called a witness who testified, that in the month of December 1825, he presented the plaintiff’s account to the defendant for payment. That the defendant observed, that a part of it had been submitted to arbitration; but he would pay five hundred and fifty dollars to close the concern, and settle the business. The defendant on his part offered evidence to show that the services for which the 'plaintiff sought to recover, 'had been performed under a written contract, to build and complete a steam engine for the defendant. That in consequence of some disagreement between the parties, their accounts had been submitted to an arbitrator by mutual consent; that the arbitrator had made an award in favour of the plaintifij the amount of which had been paid by the defendant. And it was a principal subject of controversy, whether the submission to the arbitrator included all matters in difference between the parties, or only certain specific charges for extra work upon the steam engine, not embraced by the written contract.
    The defendant gave in evidence the written contract between himself and the plaintiff, bearing date the 19th of August, 1824; wherein the latter had stipulated and agreed to make and complete a steam engine for the defendant, according to certain specifications therein contained, for a steam boat which he was then constructing. And by a further contract between the parties, dated April the 21st, 1825, the defendant agreed, “to guaranty the breaking and ordinary ware of the said engine, for sixty days provided it was not broken by some uncommon gale, or by running against some object.
    The defendant also produced certain receipts shewing payments for the principal part of the engine, together with the following award of the arbitrator, viz: Whereas Geo. Birkbeck “ and Silas E. Burrows, having certain disputes and controversies subsisting, arising out of the charges and demands of the “ said Birkbeck, against the said Burrows, relative to the steam “ boat New-London, which controversies, disputes, charges and “ demands, the said parties have submitted to my arbitrament “ and award, and have made their allegations and proofs respect- “ ively before me, now know ye, that having examined the matters submitted to me, I have ascertained and awarded and do “ hereby award that there is due to the said George Birkbeck “ from the said Silas E. Burrows on account of the premises the sum of $945 74, and I do award and order that the said Bur- “ rows do in five days after notice of this award pay the said sum “ in full satisfaction of all and singular the premises, and that “ upon such payment, mutual releases be executed by the said “ parties, the one to the other. In witness whereof I have here*unto set my hand and seal this first day of September, 1825.”
    (Signed) Q. H. HICKS, [l. s.]
    On this award was endorsed the following receipt. “New-York Sept. 5th, 1825. Received of Silas E. Burrows, for and “ on account of George Birkbeck, nine hundred and forty five dollars and seventy four cents in full.
    (Signed) JNO. A. MOORE.

      The plaintiff to rebut this evidence, called John A. Moore, as a witness to prove that the subject matter of the present suit had not been submitted to the arbitrator. To this evidence the counsel for the defendant objected: and it was ruled by the presiding Judge, that evidence as to the claims and facts actually put before the arbitrator at the hearing was inadmissible, except for thé purpose of showing what the submission ivas ; but that the plaintiff might inquireas to what the parties had agreed to submit to the arbitrators, the submission having been by parol; and that the arbitrator himself was the proper witness to prove those facts.
    To this opinion the counsel for the defendant excepted.
    The plaintiff then called the arbitrator, who testified that the submission was by parol and was “ of all claims for extra work to the steam boat New-London? That a bill was laid before him specifying the accounts submitted, and that the items therein were the only matters on which he acted. He understood the submission to embrace all claims and matters of account between the parties up to the time of the submission, and thought that the account contained charges for extra work upon the engine. Nothing was said of any other matters of account not included in the submission; and the witness gave a copy of his award together with the plaintiff's account to his son, with directions that they should be handed to the plaintiff. The son of the witness was now dead, and he could not say whether the papers ever reached the plaintiff, or not.

      The counsel for the defendant here called for the account, as containing the best evidence of what had been submitted. But the plaintiff alleged that it had never been received by him.
    The plaintiff also produced witnesses to prove, that the matters submitted to the arbitrator, were altogether for extra work upon the steam engine and not for repairs ; and that the controversy was then confined to the question whether such extra work was within the contract to construct the engine, or not.
    The defendant then offered in evidence a copy of a written communication from himself to the plaintiff, relative to the present claim, bearing date the 4th of April, 1826 : but this evidence was overuled by the presiding Judge, who, however permitted the defendant to prove the fact, that such a communication had been made. The defendant also offered evidence to show what articles were necessary, to make a complete engine within the contract, and that some of the articles charged in the present bill, were of that description.
    This evidence was also excluded by the Judge, who charged the jury, that the award was a final bar to every claim submitted to the arbitrator; but as to what had been submitted, that was a question of fact for them. That the account laid before the arbitrator, would, if in evidence, be conclusive upon that point; but as it had not been produced, the Jury must decide upon the testimonybefore them, as to the charges which had actually been submitted to the arbitrator. That if the charges contained -in the present bill, had been included in the former account, their verdict would be for the defendant, otherwise for the plaintiff. That if the Jury should be satisfied that the charges in the present bill, up to the time of the award, were included in the account submitted, and that the residue was not so included, then the time of the submission would become material. That the testimony upon this point, was not sufficient to fix that time with precision, and if the jury could not be satisfied as to this, then that the defendant’s own offer to pay $550 would be perhaps the most equitable rule of damages. But upon all these points, the decision was left to their discretion. The jury were also charged, (upon the legal effect of the contract to keep the boat in repair,) that the plaintiff was bound to make good all damages arising from the breaking of the engine from ordinary ware, for the space of sixty days ; and that they were to say whether any of the present charges fell within that contract, if they did, then such charges were to be deducted.
    The jury returned a verdict in favor of the plaintiff for nine hundred and twenty five dollars and forty three cents ; and the defendant now moved for a new trial.
    Mr. D. Graham and Mr. Ogden Hoffman for the defendant, and in support of the motion, contended—

      I. That parol evidence of the matters which the parties had agreed to submit to the arbitrator, ought not to have been received at the trial. It appeared, from the testimony, that there was no written submission ; but the award was in writing, and recites the matters which were submitted. It is therefore not only the best evidence as to what was submitted, but it is conclusive unless impeached for corruption in the arbitrator. It expressly states, that the parties “ having certain disputes and controversies subsisting,” have submitted them to the decision of the arbitrator. This should be taken to mean all causes of action, subsisting at the time. The award contemplates a final end of all controversies ; for it decrees that mutual releases should be executed by both parties. How then was any thing to be left for future litigation 1

    This is certainly better evidence of what was actually submitted, than any thing to be derived from the memory of witnesses, as such testimony must always be vague and uncertain. The recitals in the award therefore are evidence of the matters submitted, and should be deemed conclusive. [9 John R. 38. 12 J. R. 311.] The decree of the arbitrator, voluntarily selected by the parties, having been complied with on the part of the defendant, and the amount of the award having been received by the plaintiff the award itself was conclusive upon the parties, and could not be opened.
    But if this be not so,—if the award and its recitals were net conclusive evidence of every thing which was submitted, still the plaintiff was bound to produce the best evidence of what was submitted, because he had the power to produce conclusive evidence on this point, while the defendant had not. The account furnished to the arbitrator by the plaintiff himself, would have been conclusive evidence of every thing which the plaintiff claimed at the time of the award. That account was traced into the possession of the plaintiff, or into such a situation that it was a fair presumption that it was received by him. He therefore was bound to account for its non-production, before he could be allowed to go into other evidence of what the account contained. [10 John R. 363.]

      II. Parol evidence as to what was clamed before the arbitrators ought not to have been received. [3. Caine’s R. 167. 3. John R. 367. 2. Bay’s R. 94.] But the copy of the defendant’s letter to the plaintiff, relative to this very claim, and which was proved to have been delivered to him, ought to have been admitted at the trial. It would have had a material bearing upon that part of the plaintiff’s proof which related to the confessions of the defendant, and would have shown that he never intended to admit the justice of the present demand in any shape. But if parol evidence was admissible to prove the plaintiff’s claims, then the defendant ought to have been permitted to show what articles enter into the structure of a complete engine, that the jury might decide whether or not a part of the articles charged were of that description. Such testimony was offered at the trial, and rejected. It was competent for the defendant to prove these facts for the purpose of showing that the very articles charged in the present account were in truth, furnished under the contract. All the articles charged, were furnished after the boat was delivered; and the plaintiff was bound by the contract to keep the machinery in repair for sixty days thereafter. Under every aspect of the case, therefore, the testimony was proper, and ought to have been received.
    III. The jury were misdirected in being charged, I. as to the legal effect of the award. 2d. In being charged that it was a question for them to decide, as to what had been submitted to the arbitrator. 3. In being told, in effect, that if they should not believe the charges now made were contained in the account submitted to the arbitrator, they must find a verdict for the plaintiff. As to the legal effect of the contract, the charge should have been, that it was the presumption both of fact and law, that all matters in controversy between the parties, which ought to have been submitted to the arbitrator, were contained in the submission. The weight of evidence upon the questions of fact, was on the side of the defendant; but the charge of the judge plainly intimates that the plaintiff was entitled to a verdict for something, and seems to take it for granted, that the defendant’s offer to pay five hundred and fifty dollars, was evidence that so muck, at least, was due to the plaintiff. This shews the impropriety of excluding the defendant’s letter; for it will be observed, that the defendant, even by the testimony of the plaintiff’s own witness, never admitted that he owed the plaintiff any thing; he merely offered to pay a certain sum to escape from a controversy with the plaintiff. The defendant by no means intended to admit that the offer was proved,—but if proved, he ought to have had the privilege of explaining it.
    IV. Injustice has been done to the defendant by the jury, in their method of ascertaining the balance due to the plaintiff!— and there is important newly discovered evidence which entitles the defendant to a new trial. [The counsel for the defendant read an affidavit in support of the last point, and went into a minute examination of the testimony produced at the trial relative to the state of the accounts between the parties, for the purpose of showing that the verdict of the jury was erroneous and ought to be set aside.]
    • Mr. J. JLnihon, contra for the plaintiff.
    I. The bill exhibited against the defendant in this suit, was hr repairing the machinery of the steamboat, after her delivery to the defendant; and the question is, whether any claims for such repairs were ever submitted to the arbitrator". The plaintiff contends, that the matters submitted, related exclusively to extra work, in constructing the steam engine ; for original work, beyond that required by the contract, and such as the experience or fancy of the defendant called for. It is evident that the award is no bar to the plaintiff’s claims, if it shall appear that they were never submitted to the arbitrator. How was the plaintiff to prove what the subjects of the arbitration were ? At the trial, the defendant introduced the award, and the plaintiff called for the submission, because an award without a submission is a mere nullity.

      It appeared, from the testimony of the arbitrator himself, that the submission was by parol, and it surely was competent for the plaintiff then to shew what the subjects of the submission were that he might thereby prove that his present bill had never been before the arbitrator, and that the present claims had never been submitted to him by the parties for his award.
    The whole question then turns upon (he inquiry whether the award is conclusive or not. It is undoubtedly conclusive if it embraces the subject of our present claim ; but the award in its terms does not comprehend all matters in dispute. It recites certain controversies, and leaves the plaintiff to show what those controversies were. There are two classes of cases presented by the books : one of all demands between the parties ; the other of all matters in difference. The first includes all claims up to the time of the award, but in the other it must be shown what the matters in difference were. [4 D. & E. 146, in notis. 12 John. R. 312. Starkie on Evi. book 4. p. 139. 4 Esp. R. 180. 16 John. R. 136. Phillips v. Bennick.]

    In the present case how were we to ascertain the subject matter of the submission except by parol proof 1 If we refer to the award, we are left to the same rule, for that speaks only of “ certain disputes and controversies.” It is obvious therefore that it must be shown what those disputes and controversies were, and there was no way of showing them, except by parol proof. The award itself could not bind beyond the submission, and we proved to the jury that our present claims were never submitted to the arbitrator. They could not have been submitted, for they were not then the subjects of dispute, and those facts we had a right to prove. Upon these points therefore the presiding Judge was undoubtedly right, and the evidence was all properly admitted.
    II. The contents of the written communication from the defendant to the plaintiff were properly excluded; for if admitted, it would enable the party to make evidence for himself. If proved, nothing would be shown but the defendant’s declarations in his own favor, which can never be admitted as evidence. The fact that the communication was made, the defendant did prove; he had all the benefit of the inference to be derived from that fat and could not complain that the rules of evidence were not extended further.
    III. The testimony which the defendant sought to introduce for the purpose of showing what articles go into the construction of a complete engine, was properly excluded, because entirely foreign to the controversy. This action is brought for repairs alone; how then could the defendant be allowed to prove, what the plaintiff ought originally to have made ?

    IV. The whole case was submitted to the jury upon terms most favorable to the defendant. The charge of the Judge, was perfectly impartial upon all the questions of fact; but if it had not been, how could this court interfere with the charge for any supposed bias as to questions of fact 1 The jury have found that the plaintiff performed the services for which this action is brought; they have found that the questions relative to those services have never been submitted to any arbitrator, and that the defendant has never remunerated the plaintiff for his labor, They have also found, that our claim is for repairing machinery previously constructed, and that by the terms of the contract, the plaintiff was not bound to make those repairs. If these facts are so, (and that they are, the court is bound to presume, being found by the jury) why should not the defendant pay the amount of the verdict 1 The .charge of the Judge upon the contract was in favor of the defendant, for he told the jury that the plaintiff was bound to keep the engine in repair, for sixty days; and if the claim, in our account, were for the repairs required by the contract, then, that the plaintiff was not entitled to recover. We proved that they were required from the carelessness of the defendant’s agents, and the jury have so found by their verdict. Every possible objection to the charge of the Judge is removed, and the defendant can only complain because the jury have found the facts against him. That finding was consistent with the law, the evidence and the justice of the case, and the verdict ought to be permitted to stand, for the amount found by the jury.

      V. As to the newly discovered evidence, it was, at best, but cumulative, and could not lay the foundation of a new trial. [16 John. R. Smith v. Brush. 8 J. R. 84. 15 J. R. 220. 4 J. R. 425.]
   Per Curiam.

The first ground upon which the defendant’s application for a new trial rests, cannot be maintained. The award does not upon its face purport to cover all subjects in controversy between the parties; but it recites “ certain disputes arising out of the charges of the plaintiff against the defendant, relative to the steam-boat New-London.” It may be, that those controversies arose concerning matters entirely different from the charges embraced within the present claim, and as the submission to the arbitrator was by parol, the plaintiff had no means of showing what the subjects submitted were, except by calling witnesses; and if parol testimony was admissible, the arbitrator himself was not only a competent, but the best witness to be produced. The award is not upon its face, or by its terms, conclusive as to the matters submitted; but it is sufficient to cast upon the plaintiff the burthen of showing what the matters in dispute were which the arbitrator had before him, and that the present claims were not included in the submission or embraced by the award. The submission, it appears, was by parol, and the plaintiff could not therefore introduce any thing but parol evidence as to the matters submitted. By calling the arbitrator as a witness, he furnished the best evidence in his power, and that evidence was rightfully admitted. The award would of course have been conclusive, if it had embraced the subject of the plaintiff’s present claims, and the fact as to whether it did, or did not embrace those claims, was properly submitted to the jury. Upon this point, therefore, the decision of the Judge at the trial was entirely correct.

As to the excluding of the written communication from the defendant to the plaintiff, we can see no error in that. Its contents, if proved, would amount to nothing more than a declaration made by a party in his own favour, and the defendant had all the benefit which he could rightfully claim from the writing as evi dence. He was permitted to prove the fact that he had delivered to the plaintiff the written communication, and as it was not produced by him, all the inferences to be drawn from the withholding of it, were in favour of the defendant.

With regard to the account furnished to the arbitrator,—it would undoubtedly have been the best evidence to show, whether the items of the present claim were embraced in the former submission or not; and it would be very desirable to obtain that account if it were practicable. But it would be going too far to say, that the plaintiff should be precluded from offering any evidence of his demands, because the arbitrator had placed the account in the hands of his son, with directions that it should be delivered to the plaintiff. The person who received the account was not the agent of the plaintiff, and as there is no proof that it was delivered to the latter, or put under his controul, he could not be precluded from offering the best evidence in his power as to the nature, items, and amount of his claims.

Neither do we perceive any error in the charge of the Judge to the jury. His construction of the agreement between the plaintiff and the defendant, was undoubtedly the correct one ; and all the questions of fact were fairly submitted to the jury. But in their finding, upon the evidence, there is reason to think that they have not done substantial justice to the defendant. The account, as presented by the case, shows that the jury have either misunderstood some parts of it, or that they have made an erroneous application of the evidence to the matters before them. It is evident, on inspection, that the plaintiff has been allowed for many articles which he was bound to furnish under his agreement to keep the ■ engine in repair, and for them the defendant cannot be made responsible. Upon the whole, we can perceive no error either in the charge to the jury, or in the ruling of the Judge as to the evidence ; but we think thdf verdict excessive and erroneous. We shall therefore set it aside, and direct a new trial, up on the payment of the costs by the defendant.

Where a verdict is set aside upon the ground of error or mistake on the part of the jury, according to the established practice, the party moving for the new trial is bound to pay the coats, and in this case they must be paid by the defendant.

New trial granted on payment of costs by the defendant.

[E. Anthon, Att'y for the pltff. D. Graham, Att'y for the deft.]