Bonner & Goode v. Marx

Citations

• 51 Miss. 141

Syllabus

<p>Evidence: Sea/rsay — Instructions.</p> <p>M. being indebted to B. & G. $250, S., tbe bolder of tbe claim, saw M., wbo said be “ bad been told by B. not to pay to G. but balf of tbe debt, and to pay B. tbe other balf.” S. then agreed to settle witb M., G.’s balf, upon condition that B. confirmed tbe statement. S. saw B., wbo denied if. Tbe court excluded so much of tbe testimony as gave tbe response of B. to the inquiry of S. A carriage was given by L. to G., wbo turned it over to M. for sale, be guarantying it to bring $250; tbe court instructed tbe jury that recovery could not be bad under tbe count for money had and received, in this action, but that tbe suit must be brought upon tbe guaranty. Held, tbat sucb testimony is not hearsay, and ought to have been received; that M. was bound by the declaration of B. in the same manner, and to the same extent, as if made by himself, and that whether M. took the carriage in part payment or on consignment, he was liable for money had and received for whatever amount the carriage brought, and that the charge was erroneous, and calculated to mislead the jury.</p>