#### BURR HIGGINS v. THE NORTH CAROLINA RAIL ROAD COMPANY.

The con tents of a letter from, the plaintiff to the defendant, is only evidence to prove & demand, or to show the pertinency., or explain, the meaning of any reply which the defendant may have tuade to. it.

Where a letter written by the plain liff, strongly stating his ease, was permitted to be read to the jury, and pressed by his counsel in the argument, it was held to be error to pronounce that the whole letter had become evidencej by the defendant’s- relying on a part of it for his defense.

This- was a», action on the case, tried before Bailey, J., at tile last Spring Term of Gnilforcl S-n-perior Court.

The declaration was against the defendant as a common carrier, and for negligence iti not delivering at Raleigh certain- boxes, containing parts of a steam engine which the plaintiff was sending-to New York, to be altered and re-adjusted. Before the suit was commenced, the plaintiff wrote-a detailed statement of the transaction to his counsel, frota which it appeared that he had put this machinery in the hands of the defendant’s agent at Greensboro”, to be delivered the Monday following to the Raleigh and Gaston Rail Road Company, at Raleigh, on the way to New York via Norfolk; that the boxes were not delivered at Raleigh, but sent ota to Goldsboro’, and detained, there for more than three months;, that nothing could be learned of this machinery for most of this-time, aud that in consequence of not getting these parts of the* engine to New York, the plaintiff had to buy other machinery. The letter proceeds to comment argumentatively on the* conduct of the defendant’s officers, and claims that the company should pay him ten dollars a day while the goods were-delayed. This letter had been laid before the board of directors of the company," and by its order, referred to the president of the company, to- enquire into the facts of the claim, and, in case he was satisfied of the liability of the company, he was authorised to settle it. Sometime afterwards, the plaintiff called on. the president to know the result of his enquiries, and his- determination, in. the premises* who informed him, that *471he bad not had time to make the investigation. Whereupon, the letter was returned to the plaintiff, and this suit brought. The reading of the letter to the jury was objected to by the defendant’s counsel, but allowed by the Court. Defendant excepted.

On the argument of the cause,-the letter was commented on by the plaintiff’s counsel at length, and some parts of it by the defendant’s counsel. The Judge, in charging the jury, informed them that there were no admissions by the defendant going to show any liability to the plaintiff. The counsel for the plaintiff then stated that a portion of the letter had been commented on by the counsel for the defendant, and he asked his Honor to instruct the jury that,.if the defendant relied on any part of the letter, as evidence for him, it made the whole of it evidence for the plaintiff. The Court here asked the defendant’s counsel if he relied upon parts of the letter; to which he replied that be'did. Upon this, the Court instructed the jury that the whole letter was evidence. Defendant again excepted.

Yerdict and judgment for the plaintiff, from which defendant appealed.

Moretead and McLean, for the plaintiff.

Oorrell, for the defendant.

Battle, J.

It is apparent from the bill of exceptions-, that an error was committed against the defendant, by the unqualified admission in evidence of the letter from the plaintiff to one of his counsel. An attempt seems to have been made to correct that error, but we are unable to discover that it was done so effectually as to remove entirely the prejudice which it was well calculated to create, and no doubt, did create, against the defendant’s cause; and, for that reason, we feel constrained to reverse the judgment and grant a venire de novo.

In saying that the letter from the plaintiff to his attorney was admitted without qualification, we are not unmindful of *472the fact that his counsel contends that it was offered and received in evidence, only for the purpose of showing that it was laid before the board of directors, and thereby proving-a demand made on the -company. It was certainly competent only for that purpose, or to show the pertinency, and explain the meaning of any reply which the defendant, through its officers, may have made to it. See Overman v. Clemmons, 2 Dev. and Bat. Rep. 185. But whatever may have been the ground upon which the letter was admitted, the case does not show any restriction, either-in -its reception, or in the use made of it. It is simply stated that it was offered, and, notwithstanding the defendant’s objection, was admitted in evidence, and afterwards thatit was commented upon at length by theplaintiff’sconnsel. Surely, it was error in the Court to permit a letter whicli tended to prove the plaintiff’s whole case, to be thus used, when the only purpose for which it was competent, was the very restricted one of proving a demand made by the plaintiff on the defendant, or of showing the pertinency and meaning of any reply which may have been made to it.

The question remains, was this error cured by the aetion of the Court afterwards? and we think very clearly that it was not. The Court instructed the jury, that “there were no admissions by the defendant, going to show any negligence or liability to the plaintiff in the action.” Well might the Court say that there were no admissions by the defendant, for there manifestly were none, but the Court did not go on and say that the plaintiff’s letter was not competent to prove the defendant’s negligence and consequent liability. A vague inference that the Court so intended, may, perhaps, be drawn from the next motion of the plaintiff’s counsel, and the Court’s response to it. After the full comment which the plaintiff’s counsel had made upon the letter, the defendant’s counsel followed by commenting upon certain parts of it. This he clearly had the right to do, notwithstanding his previous objection to the admission of the evidence. It was at this stage of the case that the counsel for the plaintiff called upon the Court to instruct the jury that if defendant’s counsel relied upon *473any part of the letter, t'he whole ©f it was competent as evidence for their consideration. Upon an enquiry from the Court, the counsel for the defendant replied thafc-he did rely upon certain parts of it. It will be noticed that the Court had not before, nor did then, inform the counsel that the letter was not fully before the jury as evidence of the truth of its statements; and even., i-f the Court intended, to withdraw the letter, or supposed that it had done so, the counsel was well warranted in the belief that such was not the fact. We cannot impute to the counsel the folly of doing or saying any thing to admit the letter as full evidence in the-cause, after he had objected previously to its admission at all. He must have supposed that it -was already in evidence before the jury, and he only intended to insist -upon his right to make the best use of it he could. If he were mistaken in his supposition, it was a mistake into which the conduct of the presiding Judge had led him by not informing the jury distinctly, that the letter was not evidence before them to prove the truth of the statements which it contained, but, at most, could be used by the plaintiff only to show a demand. The jury were probably misled ■by the course pursued by the Court, and as defendant’s cause may have been prejudiced thereby, the judgment must 'be reversed, and a new trial granted.

Per Curiam,

Judgment reversed.