Hulbert v. Hammond
| Decision Date | 02 July 1879 |
| Citation | 41 Mich. 343,1 N.W. 1040 |
| Court | Michigan Supreme Court |
| Parties | HENRY R. HULBERT v. JOHN HAMMOND. |
In an action upon an account it was stipulated as to the amount of the account as kept by plaintiff up to a day named, and that such account was correct, unless before that time defendant had paid a certain sum not credited on plaintiff's books. Held, that the burden of proving the disputed payment was on the defendant, and that the refusal to require plaintiff to produce his books, when first called for by defendant, was an error without prejudice.
Receiving evidence in improper order is not ground for reversal. Where defendant had put the account books of plaintiff in evidence held, that he could not afterwards be permitted to show that they were incorrect.
Hulbert sued Hammond before a justice of the peace to recover an amount claimed to be due on a running account. Before the case came on for trial the parties made and signed the following stipulation:
[Title of the cause.]
"In this case it is hereby stipulated and agreed by and between the attorneys for the respective parties herein, that according to the account kept by the plaintiff there was due to the plaintiff from the defendant, on the nineteenth day of April last, the sum of seventy-one dollars and fifty-one cents and that the said account was correct, unless before that time the said defendant had paid to the said plaintiff the sum of thirty dollars, which was not credited to the defendant in the said account, and which the said plaintiff claims never to have been paid."
By this stipulation the defendant conceded a prima facie case to the plaintiff, and took upon himself the burden of proving the disputed payment. He, therefore, called upon the plaintiff to produce for examination the books of accounts containing the entries of accounts between the parties. The plaintiff had the books in court, but objected to showing them, and the justice held he need not do so until the defendant had given evidence of the time when he made the payment in dispute. This ruling constitutes the first ground of complaint.
As the defendant had admitted that plaintiff's account showed a certain sum to be due, it is not supposable that he expected the books to show that the disputed item had been paid. The justice appears to have assumed that defendant wanted to have a view of the books in order that he might shape his own testimony, so as to avoid any inferences against his case that might arise from the...
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