Lisman v. Early

Citations

• 15 Cal. 199

Syllabus

<p>The admission of evidence, even after the party has had an opportunity to offer it, and has failed, is matter of discretion, and the Court ought generally, whenever the ends of justice require it, to admit the testimony.</p> <p>Suit on a note. Defendants answered by pleading payment, and averring payment at divers times of money to plaintiffs intestate, which he promised to apply on the note. Plaintiff put the note in evidence and rested. Defendants offered receipts, to prove payment. To rebut this, plaintiff offered proof tending to show that these payments applied to an open account against defendants. Defendants then proposed to rebut, by showing that there was no such account made or existing. Court refused to permit it. Held, that the Court erred; that the burden of proof was really on defendants to prove payment under the issue, and that they were entitled to close the proofs, at least to rebut new matter set up by plaintiff.</p>