Charles S. Moore v. William Watson, 4 Dev. 509

Castor, Judge, after stating the case-as above, proceeded as follows : — It is insisted here, on the part'ofthe defendant, that the rejection of this testimony was erroneous. Ve believe that this exception is well taken.— This is not a case where the parties have reduced their contract into writing, and parol evidence is offered to explain, vary or contradict it.

The entries or memoran-da at the foot of the account, being in the handwriting ofthe defendant, although made subsequent to the action, and after the parties were at issue upon the matter in controversy, yet furnish presumptive evidence of his admission of the correctness of the charges therein contained, and is therefoi’c admissible testimony to establish an antecedent contract. But the circumstances accompanying the making of these entries ought to have been received, in order that the force of this presumption might be properly estimated, and correct inferences drawn from it by the jury.

The [¡resumption was one of fact, and not of law. The instrument had no conclusive force which in law estops a party, and excludes the truth. Per Curiam, — Judgment reversed.