¶1The plaintiff, by his complaint herein, alleges that the defendant engaged the plaintiff's intestate to *354 proceed to England and there perform work, labor, and services as a surveyor and draughtsman, for which he promised to pay him fifteen dollars per week in American gold coin. That in accordance with such engagement the intestate proceeded to England, and there performed certain work, etc., whereby the defendant became on the 15th July, 1864, indebted to the intestate in the sum of $333.07 in American gold coin, being thebalance remaining due after sundry payments made by the defendant.
¶2This allegation, I think, invited an issue upon the question whether a balance of $333.07, was or was not due, and the answer of the defendant put that allegation in issue.
¶3It was wholly unnecessary for the plaintiff to sue for a balance as such; he might allege the contract, performance on his part and claim payment, and then, if the defendant desired to prove payments, he must allege payment in his answer; but where the plaintiff sues for a balance, he voluntarily invites examination into the amount of indebtedness, and the extent of the reduction thereof by payments, c.
¶4It was, therefore, error to exclude proof of payments made by the defendant on account, and the receipts given by the intestate therefor.
¶5The referee also erred in striking out the testimony of the defendant, not only because as to some of the facts to which he testified, they did not appear to have formed part of transactions or conversations had by him personally with the deceased, but also for another reason, which was fatal to the motion.
¶6The defendant was sworn and examined without objection. Certain questions put to him were excluded, but none of the testimony which he gave was objected to, and his direct examination was closed, and the reference was adjourned to a future day. There is no pretence of any surprise or misapprehension of the fact that the witness called and sworn was the defendant. Any and every objection which could be taken to his testifying, or to his testimony, was apparent on the face of the proceedings; and yet at a subsequent hearing, *355 the referee struck out the testimony on the alleged ground that the defendant was incompetent to testify. This will not do. A party against whom a witness is called and examined, cannot lie by and speculate on the chances, first learn what the witness testifies, and then when he finds the testimony unsatisfactory, object either to the competency of the witness or to the form or substance of the testimony.
¶7It is not the case, which sometimes occurs, where on cross-examination, or in a subsequent stage of the trial, the incompetency of evidence appears, though apparently competent when given; e.g., oral proof of an agreement, which on cross-examination appears to have been in writing, or proof of parol negotiations, c., where it afterward appears that the oral treaty was, are afterward embodied in a written covenant or agreement, and like cases.
¶8The counsel may have been careless in permitting testimony to be given without objection, which, perhaps, would have been excluded if objected to; but this will not authorize the referee to strike it out after it has been received. This is a rule especially important, since parties are permitted to testify. The utmost fairness should be observed in the conduct of their examination, and if the adverse party desires to object to transactions with a deceased, he must do so in season, and not wait till he learns what they are, and then, if they bear unfavorably on his case, strike them out.
¶9On these grounds, the judgment must be reversed.
¶10All the judges concurring, judgment reversed.