Jackson, Chief Justice.
This is an action for the recovery of certain sums of money alleged to be due by the Planters and Miners’ Bank to the estate of Lewis Tumlin. It was brought by Gray as administrator on Tumlin’s estate, but is now proceeding in the name of Neil, receiver. The foundation of the suit is a receipt as follows:
“Planters’ and Miners’ Bank,
Cartersville, August 25th, 1876.
Col. Lewis Tumlin: I have renewed your draft on W. H. Stiles & Co., and now have a draft drawn by W. H. Stiles & Co., accepted by B. M. Stiles, which will be placed.to your credit when paid.
D. W. K. Peacock, Cashier.”
The allegation is that this draft to the amount of $3,856.57, besides interest from August, 1873, its date, has been collected and the bank refuses to pay it. The action was amended by alleging that the Stiles draft was Tumlin’s property, held August 28,1873, by the bank for collection, and on that day the bank collected it in full, thus receiving it for the use of Tumlin, and undertook to pay the same, etc
Besides the general issue, the bank pleaded that it had collected only $1,537.00 on the draft and paid Tumlin; that at his death, his own pass-book showed five thousand dollars due him by the bank from deposits, etc.; that this was placed to the credit of his administrators, and after several years dealing between the Bank and the administrator, the bank failed, owing the administrator fifteen hundred dollars, for which the administrator sued, got judgment and collected the money, and received it in full satisfaction of all the bank owed the estate. The jury found for the assignee $1,135.73 principal, and $636.40 interest. To the refusal of a new trial the bank excepted, on the grounds therein alleged, and assigns the same for error.
Any admission made by Gray, while administrator, that the bank owed Tumlin’s estate nothing, is admissible. He brought the suit, and if he was satisfied for any reason that the bank did not owe Tumlin’s estate, and admitted it to any person from calculations or otherwise, such conclusion and admission, while clothed with the trust, is admissible. If it were a conclusion of his mind only and not expressed while clothed with the trust, but drawn from him on the stand after he was dismissed and Neel was made receiver, such conclusion is not admissible. The record is confused as- to what it was precisely; taking the motion and the judge’s statement together, and as the case will be tried again, we give the above as the law to govern its admission or rejection on the next trial.
We think that as Peacock was the cashier of the banK, who made the trade with Tumlin, he is not generally a competent witness, inasmuch as the bank acted, spoke and dealt through him, and Tumlin was dead, with whom he dealt. See Flournoy & Epping vs. Wooten, exr, et al., 71 Ga , 168 ; Central Railroad Co. vs. Papot, 59 Ga., 342.
But if the receiver introduced to the jury the sayings of Peacock, or his writings, which are but written sayings, he may explain such statements or admissions and give all that transpired at the time concerning that transaction ; especially may this be done, if he was agent both of the bank and of Tumlin. 51 Ga., 624.
We are clear that the letter of the cashier to Tumlin, which, is the inducement or foundation of the suit, should not have been admitted, because that offered was not the paper set out in the declaration or appended thereto. In the one case, the paper uses the words, “ I have renewed your draft,” etc., and in the other,. “ I have received your draft,” etc., and thedates of the two instruments are different. If the instrument be a paper sued on, the error is fatal; if not, its execution should have been proved. So that, in either event and upop both grounds of objection, it should have been rejected as evidence.
We think that Tumlin’s character as a man of close attention to business may have thrown some light on the transaction under all the circumstances surrounding this case, and was admissible for what it was worth as such a circumstance. The tendency of the courts is to open the doors wider to let testimony in, and as this case is by no means a clear one, but seems much involved in doubt as to the real truth, anything tending to let in a ray of light, however little, should not be excluded.
Inasmuch as the case is to be tried again and more testimony may be adduced pro and ’ con the verdict reached by the jury this time, we forbear to express any opinion on the merits of the case upon the facts this record now discloses.
Judgment reversed.