—We think the learned trial judge committed an error in the admission of the entry upon the defendants’ ledger as evidence.
There is and can be no pretense, it seems to me, that an entry in the ledger was admissible under the rule allowing the account book of a party as evidence in his favor, for the reasons that the evidence in this case shows that the original entry was "upon another book, and an account book is only evidence of sales and dealings in the ordinary course of busin@ss, and not of special contracts of the character of the one in this case under which a party claims to have paid a claim against him by crediting such claim upon an account he has against another party. McGoldrick v. Traphagen, 88 N. Y. 334. Besides, the evidence shows the entry in the ledger is not a copy of the entry in the book of original entry, but is a “ totalling ” of it, whatever that may be. Nor is it suggested in the opinion of the learned general term, in affirming the judgment, that the entry in the defendants’ ledger was a part of the res gestee between the parties to the action. Upon the contrary, it is assumed, in the opinion of that court, that the entry was not a part of the res gestee.
But in that opinion the ruling of the trial court is approved upon the ground that the entry shows that “ the defendants did as they agreed, and in fact did offset the price by crediting the third party’s ‘ account ’ with the purchase price ” of the goods in question. The question upon this appeal is, therefore, brought to this, whether a party to *368a contract, the terms of which are in dispute, may give in evidence his own statements, either oral or written, made subsequent to the contract, in corroboration of his version of the contract?
The question is not whether the defendant had performed the contract, but what the contract was and as to the defendants’ right to perform it in the manner pursued by them.
The general rule is that such statements and entries are inadmissible for any purpose. There was no pretense that the defendants could not recollect the terms of the contract, and so reference to contemporaneous memoranda might be resorted to to refresh a dull or defective memory. The rule is such case is limited to an original entry made by the witness at the time of the transaction. For the general rule and the exceptions to it, see opinion of this court by Judge Bradley, 114 N. Y. 280, and the cases there cited.
The entry in the ledger of defendants was not the book of original entry, nor made at the time of the transaction, nor made by the witness who testified in relation to it. It seems to me that it would be a somewhat novel, not to say dangerous, rule of evidence upon a trial to determine a dispute as to what the contract between the parties is, to allow one of the parties to testify that he had performed it in harmony with his testimony as a witness.
But the case under consideration goes much further than that. It allows the party to show in corroboration of his testimony, flatly contradicted by the other party to the disputed contract, not the actual performance of the disputed contract, but a performance upon paper by an entry made subsequently to the contract by himself or under his direction, upon his own books, of the way and manner he intends or hopes to perform it; for the entry of a credit upon the books of one party in his accounts with another party is not the performance of a contract. It is the actual adjustment and settlement of the entry upon the book that can constitute *369performance. Until actual application and settlement, the entry, upon the hooks of a party signifies nothing more than that party’s understanding or wish as to the mode of performance. The settlement or the performance of the contract between the parties in this case required the assent of the plaintiff’s assignors, and the assent of the third party who owed defendants, that the debt might be paid in this way, and that tho third party thereby become the debtor to the plaintiff, before the contract as claimed by the defendants could be performed.
No such assent or action was shown, and the entry upon the defendants’ books signifies nothing in the way of actual performance of the contract.
I think the judgment should be reversed and a new trial granted, with costs to abide the event.
Follett, Ch. J., Vann and Parker., JJ., concur.
Bradley, Haight and Brown, JJ., dissent.