Opinion of the Court. tracts where the intent of the parties thereto is that there shall not be a delivery of the commodity sold, but only a payment of differences by the parties losing upon the rise or fall of the market." 79 Ohio Laws, 118. The dealings between Morris and the brokers were in Ohio, and their character must be determined by the laws of that State. The testimony of Mrs. Slawson, the stenographer, and of Morris, is very clear to the point that Merriman & Rockefeller neither delivered nor received oil, and that all settlements made with their customers were made "on the tape;" i.e., by the market reports and without any intention of real transactions in oil. Morris testifies that all his dealings with them were of that character. Rockefeller was not asked concerning this, and there is nothing in his evidence inconsistent with actual sales and purchases of oil. Morris' evidence, however, is sufficiently broad to cover this very transaction in which he acted for Norton, and we do not see why, under the Federal statute, it was not competent for him to tell just what in fact his dealing on this occasion with the brokers was. By section 858 of the Revised Statutes, this being an action against an administrator, Morris, as the party plaintiff, was not competent to testify against the defendant "as to any transaction with, or statement by, the intestate." The section, both in its enabling and qualifying clauses, has always been held to govern trials in courts of the United States, though the state statutes of the State in which the court is sitting make different rules as to the competency of witnesses. Ex parte Fisk, 113 U. S. 713, 721; Monongahela National Bank v. Jacobus, 109 U. S. 275; Potter v. National Bank, 102 U. S. 163; Page v. Burnstine, 102 U. S. 664; King v. Worthington, 104 U. S. 44. Morris' dealings with the brokers in the absence of Norton, though with his money and on his behalf, were not transactions with Norton, within the meaning of the statute. Hill v. McLean, 10 Lea (Tenn.), 107, 115; Jones v. Waddell, 12 Heiskell, 338; Giles v. Wright, 26 Arkansas, 476; Alabama Gold Life Insurance Company v. Sledge, 62 Alabama 566; Huckabee v. Nelson, 54 Alabama, 12; Gray v. Cooper, 65 No. Car. 183; 1 Wharton's Law of Evi Opinion of the Court. dence (2d ed.), § 450. Transactions with the intestate refer to things done in his presence, to which he might testify of his personal knowledge, were he alive, and not to transactions out of his hearing and presence, though they may affect the liability of his estate. Of course Morris could not be permitted to say what he told Norton about his dealing with the brokers or what Norton in fact knew of them, but he certainly could testify as to the real character of the contract between him and Merriman & Rockefeller. This being the case, there was evidence to show that Morris was gambling with Norton's money. Second, Was there evidence to show that Norton knew the real character of the transaction? We think there was. Norton was the cashier of a bank and a man of large experience in business. The telegrams and letters passing between Morris and Norton during the four or five months after the investment and before the transaction was closed are full of phrases of Norton which might lead a reasonable man to believe that he knew he was in a very speculative enterprise and that it was to be concluded without a real investment in oil. He refers to the investment in one place as "an oil dicker." In another he says that the market is very panicky and cautions Morris not to let him be sold out and to draw on him to prevent it. Nominally he had bought ten thousand barrels of oil and had deposited $3,000 of the purchase money as a margin. He was not an oil merchant. He had no place to store the oil. It is possible that he intended to store it in a public warehouse and sell it again, or that he thought this was actually being done for him, but there are circumstances from which a contrary inference can be drawn. He once or twice refers to Morris' knowledge of the inside workings of the market as a reason for his making the investment and for trusting his judgment as to when to sell. The jury might infer, from the evident desire of Norton to sell the moment the market advanced, that he had gone into the scheme only to win on the rise in the market, and that real ownership in the oil was not in his mind. Considering all the circumstances, we think that if the question is material in Opinion of the Court. deciding the issues in the case, there was enough evidence tending to show Norton's knowledge of the gambling character of the investment made for him to require its submission to the jury. We come now to consider the evidence as to the settlement. Rockefeller's testimony shows that his firm became insolvent in May because of the failure of their principal and correspondent in New York. This was before Norton ordered Morris peremptorily to sell out his oil purchase, and before June 8, when Morris telegraphed that he had closed the oil at 1.14 and would render an account as soon as he got it. Norton went to Cleveland, and his account of the settlement is very short. Being asked how he came to get the notes, he said: "The account showed in my favor $5,000, and Mr. Morris was perfectly good and I told him to give me his note in settlement of the deal." A "Q. Will you state whether in that conversation he said anything about Rockefeller settling up the account? I don't know. He gave me a note to settle up the matter." The explanation is not at all full or satisfactory. It would seem to be quite inconsistent with a belief on Norton's part that the money had been realized by Morris on the transaction, for if Morris then had the money why should Norton suggest taking his note? There is an omission or suppression of some circumstance known to the parties to the settlement which prompted the execution of the note. Norton's memory fails him as to whether there was any conversation concerning Rockefeller. In view of the fact that Rockefeller's firm had failed quite two weeks before and the investment had been with them, it might be a legitimate inference for the jury to draw that Norton was then advised that no proceeds had been realized from the reported sale and that Morris assumed an obligation to reimburse Norton for the loss arising through the insolvency of Rockefeller's firm, and gave the note accordingly. Norton was given a full opportunity to give the details of the settlement when a witness in the bank case, and his failure to explain justifies the inference that his Opinion of the Court. right to have the note paid would not be made stronger by any fuller statement of what occurred. The subsequent correspondence between Morris and Norton concerning the renewals of this note and the original consideration was offered in evidence and rejected by the court on the ground that it occurred after the note was given. While the question is not free from doubt we are of opinion that this correspondence was competent evidence against Norton's administratrix. The rule is well settled that conversations between parties to a controversy in which one makes a statement of fact of the truth or falsity of which the other must have personal knowledge, and which naturally calls for a denial by the other if the statement is untrue, are competent against the other party if silent, as admissions by acquiescence of the truth of the statement. The weight of the admissions varies with the circumstances of the case and the strength of the probability that the statement if untrue would have evoked a denial, and is always for the jury guided by a proper caution of the court as to the theory upon which such conversations are admitted. Commonwealth v. Kenney, 12 Met. (Mass.) 235, 237; Commonwealth v. Harvey, 1 Gray, 487, 489; 2 Wharton's Law of Evidence (2d. ed.), § 1136; 1 Greenleaf on Evidence (14th ed.), § 199. With respect to written communications, however, the rule is different because the failure of one, receiving a letter, to answer it, may be attributed to many causes besides an acquiescence in the truth of what is written, and such a rule would furnish a dangerous weapon in the hand of an unscrupulous party to make evidence in his favor against a careless opponent. It cannot be said, however, to be an unvarying rule that an unanswered letter may not be evidence against the person addressed, because there are cases in which such letters have been admitted. Fenno v. Weston, 31 Vermont, 345; Gaskill v. Skeene, 14 Q. B. 664; Gore v. Hawsey, 3 Fost. & Fin. 509; Lucy v. Mouflet, 5 H. & N. 229; Roe v. Day, 7 Car. & P. 705. These authorities are explained, some of them, on the view that a demand by the plaintiff of the defendant was necessary to the plaintiff's case, and the letter unanswered was competent Opinion of the Court. to show this, but it will be observed that even in those cases the jury was permitted to draw inferences from the failure to answer the demand. The better supported rule probably is that unanswered letters are ordinarily not evidence against the person addressed as admissions of the truth of statements contained therein. Learned v. Tillotson, 97 N. Y. 1,8; Talcott v. Harris, 93 N. Y. 567, 571; Fearing v. Kimball, 4 Allen (Mass.), 125; Percy v. Bibber, 134 Mass. 404; Commonwealth v. Eastman, 1 Cush. (Mass.) 189, 215. But the rule has some exceptions. Hayes v. Kelley, 116 Mass. 300; Wiggins v. Burkham, 10 Wall. 129. In Sturtevant v. Wallack, 141 Mass. 119, 122, the question was of the competency of the fact that bills had been sent to the defendant and a letter demanding payment, and that no reply had been received, on the issue whether defendant or another was the party liable for the goods which were sent in cases addressed to the defendant. The evidence was not objected to, but the court was asked to charge that the marking of the cases had no weight. Justice Holmes in delivering the opinion said: "We do not say that the marking of the cases alone would have been evidence against the defendant, and we readily admit that it is not every charge, however expressly made, that calls for an answer. But when a charge is of such a kind that, according to common experience, a man would naturally repudiate it if unfounded, the fact that it was made and not repudiated may be left to the jury. We cannot say that it might not have been found properly, that, if the defendant had denied Tudor's authority to charge him with the machinery, he would naturally have written to the plaintiff that he was sending his bills to the wrong man, and must look to Tudor." After all, it comes to this, that unanswered statements in letters are seldom to be regarded as admissions by the person addressed, but that exceptional circumstances may justify the court in submitting them to the jury with a proper caution. In the case at bar the letters relied upon cannot properly be said to have been unanswered. They were part of a running correspondence in which Norton was pressing Morris for the |