The objections made to the questions were that they were irrelevant, incompetent, and immaterial. No special objection was made on behalf of Spreckels, but the objection was interposed generally on behalf of the defendants. They were relevant and proper questions, calculated to elicit evidence of the most cogent character, bearing directly upon the point in issue. The issue was performance of the contract. Twenty-two thousand dollars were paid as upon the contract performed up to that time. Payment of money upon claim of a performance of a contract is assuredly evidence of the strongest character to establish that the contract was performed; and if a reason be assigned at the time for not paying the entire amount due, which does not involve any complaint of non-performance of the contract, it is no less persuasive to show that no such ground of complaint existed, that the contract was performed. To render the evidence admissible, it is not necessary that in and of itself it establishes the fact in controversy. Were such the rule, the means of proof of controverted matters of fact would indeed be limited and meager. All the law requires is that the evidence tend to prove the issue. If the offered evidence tend to prove the issue, then it is relevant and admissible--its weight or effect is for the jury: Code Civil Procedure, Secs. 1832, 1960, 1961, 1963, subd. 27; People v. Scroggins, 37 Cal. 685-702.
" Presumptions from a man's conduct operate in the nature of admissions, for as against himself, it is to be presumed that a man's actions and representations correspond with the truth:" Wood v. Hubbell, 6 Seld. 484; 1 Phil. Ev. C. & H. and Edward's Notes, 5 Am. ed. 355, 433; 1 Greenl. Redf. ed. sec. 196.
If there were any failure to perform, it was the duty alike in law and in morals for the appellants to promptly say so. If they were silent upon the subject, the presumption is that they were so because they had no ground to complain. Having failed to speak when they should have spoken, they will not now be heard to complain. The inference is irresistible that the reasons assigned for not paying all the money due were the true reasons, and no others were stated, because none existed: Reed v. Randall, 29 N.Y. 363; Gregg v. Van Phul, 1 Wall. U.S. 281; Carman v. Pultz, 21 N.Y. 551; Smith v. Hill, 22 Barb. 656.
Voight's refusal to pay on the ground that the packages were bad, would undoubtedly not prove that they were such, nor would his assertion that they were bad, be competent evidence upon the subject. But in the one case the admissions would be against his interest, and in the other would be in his favor. Counsel assuredly do not forget the settled rule, that while a man cannot make evidence in his favor by his admissions, he can make evidence against himself. Nor is there anything in the fact that Spreckels is guarantor, to prevent application of the established rules of evidence in this case. By his guaranty, Spreckels accredited Voight as his representative to act in the premises, and he is bound by his acts and declarations on the subject: Benjamin v. Hillard, 23 How. U.S. 154.
OPINION By the Court:
We are of opinion that the exceptions taken to the evidence of Schultz and Voorman cannot be maintained. The objections were general against their admissibility for any purpose whatever. It is clear enough that had Voight been the sole defendant in the action, the evidence objected to would have been admissible as against him. If, as to his co-defendant Spreckels, a different rule would obtain, by reason of the latter being a guarantor only (a question not necessary to consider), the objection should have been limited accordingly, or an instruction asked upon the point. Nor do we think, on looking into the instructions, that there was error in instructing the jury that, if the plaintiffs had substantially complied with the contract, they would be entitled to a verdict, or that the jury were misled by that expression occurring in the instructions given. The case at the trial was reduced to a single issue as to whether the packages in which the spirits were contained were " good packages," as required by the contract sued upon. The jury were told in substance that the delivery of packages not sufficient to hold the spirits or which would discolor it so as to render it unmarketable, would not amount to a substantial compliance with the contract upon the part of the plaintiffs; to instruct them in this connection, that a substantial compliance with the contract would entitle the plaintiffs to recover, was only to say that if the packages delivered were sufficient in these respects, they should find for the plaintiff, and we think that as thus understood, the case was correctly put to the jury upon the single issue involved at the trial.
Judgment and order affirmed.