#### Charles S. Moore v. William Watson.

All account slated in tlie handwriting of the defendant, does not estop him from showing that the settlement only ascertained the items of the account,, and left him at liberty to contest-the price at which they were charged.

Assumpsit for work and labour done, and materials furnished.

*510At the trial before Mártir, Judge, at Bertie, on tbe last circuit, on -non assumpsit pleaded, the plaintiff produced an account containing the items of his demand and their amount, under which ivas set forth, in the hand writing of the defendant, a credit for a sum of money paid by him, and the balance due the plaintiff, after the ■deduction of the credit. The defendant then offered to prove that these entries wero made by him at the foot of the plaintiff’s account, subsequently to the bringing of the action, upon an express agreement between the parties that the work charged therein was admitted to be done, but that the defendant denied the value thereof, and was to-be at liberty to contest this value on the trial. This evidence was rejected by the court, and the plaintiff having obtained a verdict and judgment for the balance so claimed, the defendant appealed to this court.

No counsel appeared for cither party.

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.