Mansfield v. Gushee

• Decision Date: 11 July 1921
• Citation: 114 A. 296
• Parties: MANSFIELD v. GUSHEE.
• Court: Maine Supreme Court

114 A. 296

MANSFIELD

v. GUSHEE.

Supreme Judicial Court of Maine.

July 11, 1921.

Report from Supreme Judicial Court, Knox County, at Law.

Action by Frank E. Mansfield, administrator, against T. E. Gushee. Case referred to an auditor to hear testimony and state an account. Case reported to the Supreme Judicial Court. Judgment ordered for plains tiff.

Argued before CORNISH, C. J., and SPEAR, HANSON, PHILBROOK, MORRILL, and WILSON, JJ.

Charles T. Smalley, of Rockland, for plaintiff.

J. H. Montgomery, of Camden, for defendant.

PHILBROOK, J. The plaintiff, a resident of Boston, is the administrator of the goods and estate of J. C. Curtis, deceased, the intestate, in his lifetime having been a shopkeeper in Camden, Me. This action is brought to recover an alleged balance due for goods sold and delivered according to an account annexed, which extended over a period of more than 15 years. In the court below, an auditor was appointed to investigate accounts, examine books and vouchers, hear the testimony, and state the account. After considering the evidence offered, and the legal controversies of the parties, the auditor made several alternative reports, the amounts varying according as certain legal contentions should or should not obtain, and thereupon the case was reported to this court, with the stipulation that the law court, upon so much of the evidence as is legally admissible, is to render such final judgment as the rights of the parties require.

Plaintiff's Affidavit.—In support of the entire account, the plaintiff offered the affidavit provided by R. S. c. 87, § 127, which provides that—

"In all actions brought on an itemized account annexed to the writ, the affidavit of the plaintiff, made before a notary public, using a seal, that the account on which the action is brought is a true statement of the indebtedness existing between the parties to the suit, with all proper credits given, and that the prices or items charged therein are just and reasonable, shall be prima facie evidence of the truth of the statement made in such affidavit, and shall entitle the plaintiff to the judgment, unless rebutted by competent and sufficient evidence. When the plaintiff is a corporation, the affidavit may be made by its president, secretary, or treasurer."

We have had occasion to discuss this statute recently in Haswell v. Walker, 117 Me. 427, 104 Atl. 810, where the plaintiff was the living party and the defendant was the representative of a deceased person, and we there held that such an affidavit of the living party could not be introduced in evidence because of other provisions of statute and common law excluding the testimony of such living party when the lips of his real opponent were sealed in death. But that is not the situation in the case at bar. Here the representative party seeks to testify by use of the affidavit provided by statute. The rule relating to testimony which may be given in suits by or against executors and administrators is not a bar to his right to speak. R. S. c. 87, § 117, relating to evidence which is admissible or inadmissible in such suits, provides that—

"In all cases in which an executor, administrator or other legal representative of a deceased person is a party, such party may testify to any facts admissible upon the rules of evidence, happening before the death of such person; and when such person so testifies, the adverse party is neither excluded nor excused from testifying in reference to such facts."

This leads to further examination of the evidential effect of the statute just quoted, which makes the affidavit of a plaintiff prima facie evidence, in actions brought upon an itemized account annexed to the writ. Counsel for defendant declares it to be sweeping legislation, and says that if full play is given to the language in which it is clothed it is capable of "iniquitous transformations and fantastic accomplishments." But more than 50 years ago, in State v. Hurley, 54 Me. 502, our court declared tbat the power of the Legislature to change or modify existing rules of evidence, or to establish new ones has been exercised too long to be a matter of doubt. In a still earlier case, Berry v. Lisherness, 50 Me. 118, the court said that the Legislature may prescribe what evidence shall be received in courts, and the effect of that evidence and may restrict or enlarge such rules. In Wade v. Foss, 96 Me. 230, 52 Atl. 640, this power was held to be such that even Congress could not interfere with it so far as its application to state courts was concerned, a doctrine which was affirmed in Wade v. Curtis, 96 Me. 309, 52 Atl. 762. But in State v. Intoxicating Liquors, 80 Me. 57, 12 Atl. 794, referring to a statute making the payment of a special tax as a retail liquor dealer prima facie evidence that the person paying such tax is a common seller of intoxicating liquor, the court said:

"We have many similar statutes, in some of which the words used are 'prima facie evidence,' and in others the words are 'presumptive evidence.' We cannot doubt that these phrases are intended to convey the same idea. * * * We are not aware that either of them has ever been construed as making it obligatory upon the jury to find a defendant guilty, whether they believe him to be so or not. They mean that such evidence is competent and sufficient to justify a jury in finding a defendant guilty, provided it does, in fact, satisfy them of his guilt beyond a reasonable doubt, and not otherwise. It would not be just to the members of the Legislature to suppose that, by any of these enactments, they intended to make it obligatory upon the jury to find a defendant guilty, whether they believe him to be so or not."

In the last analysis, therefore, the probative effect of the evidence declared by statute to be prima facie, is the touchstone of the principle thus laid down, and this test is in harmony with text-book writers and courts of highest authority. Starkie (1 Staikie on Ev. 479) says that prima facie evidence is that which raises such a degree of probability in its favor that it must prevail, if it be credited by the jury, unless rebutted or the contrary proved. In Kelly v. Jackson, 31 U. S. (6 Pet.) 622, 8 L. Ed. 523, a case frequently cited, the court held that—

"In a legal sense, * * * prima facie evidence, in the absence of all controlling evidence, or discrediting circumstances, becomes conclusive of the fact; that is, it should operate upon the minds of the jury as decisive to found their verdict as to the fact."

It is therefore apparent why the probative effect of the affidavit above referred to must always be considered, even though it be declared by statute to be prima facie evidence. In the case at bar the affidavit is made by the plaintiff, because he is the only person authorized by statute to make it, except in case of a corporation; but there is nothing in the record to show that he, a resident of Boston, ever had the slightest opportunity to acquire any familiarity with the business of the decedent carried on at Camden. How, then, could he state, as of his personal knowledge, that the account annexed to the writ is "a true statement of the indebtedness existing between the parties to the suit, with all proper credits given, and that the prices or items charged therein are just and reasonable"? Such affidavit we hold to be admissible under it. S. c. 87, § 117, and its offer and admission would entitle the defendant to testify under the limitations of said chapter and section; but, in view of the conditions of this particular case, we cannot concede that because of it, or the statute authorizing it, we, sitting with jury powers, under the stipulations accompanying the report, are obliged to find a full verdict for the plaintiff, whether we believe him to be entitled to such verdict or not. Before we leave this branch of the case it should be observed that the defendant laid much stress upon the order of procedure, claiming that the affidavit should have been presented before pleadings were filed. This claim is not well founded. If properly admissible it constitutes part of the evidence, and should follow the pleadings.

The Suppletory Oath.—From the report of the auditor it appears that the suppletory oath was made by J. T. Smythe, who had been in the employ of the decedent during the entire period of time covered by the account, and whose duties had been general about the decedent's store. He makes oath that the books offered—

"are the original books of account kept by the said J. C. Curtis in his lifetime; that part of the entries therein made were made by me at or near the time they purport to have been made, and that the others were written by clerks working with me at the time, and that the articles therein named were then delivered at the several times therein stated."

To the form of this oath, and the competency of the witness to testify under it in such form, the defendant seasonably objected. If this oath appeared alone we should be forced to hold that it does not satisfy the rules of law relating to admission of shopbooks which require identification by the suppletory oath.

"It is well recognized that the mere production of books of account, without identification, is not sufficient to entitle them to admission. They must be accompanied by the oath of the party who made the entries, or by the oath of some person who knew the entries to be correct. The general rule in this respect is that the entries in the hook should be proved by the clerk or servant who made them, if he is alive and can he produced. If the entries are not so verified by the person who made them, and it is not shown that such person is dead or absent from the country, they are inadmissible." 10 R. C. L. p. 1175, and cases there cited; Dunn v. Whitney, 10 Me. 9; Tebbetts v. Haskins, 16 Me. 283; Kent v. Garvin, 1 Gray (Mass.) 148; Miller v. Shay, 145 Mass. 162, 13 N. E. 468, 1 Am. St. Rep. 449; Gould...