McLellan v. Crofton

• Citation: 6 Me. 307
• Parties: MCLELLAN, adm'r v. CROFTON, Ex'r
• Decision Date: 01 May 1830
• Court: Maine Supreme Court

6 Me. 307

MCLELLAN, adm'r v. CROFTON, Ex'r

Supreme Judicial Court of Maine, Cumberland

May, 1830

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THIS was an action of indebitatus assumpsit, on promises alleged to have been made by James Dunn the defendant's testator, to William Waite the plaintiff's intestate, for the goods, & c. mentioned in the schedule annexed to the writ. This schedule appeared to be a transcript from Waite's book, being charges of sundry items accruing from March 7, 1795 to Aug. 15, 1801, at which time the account was footed by Waite and the balance carried to new account.

The defendant pleaded, first, the general issue, which was joined: secondly, non assumpsit infra sex annos; thirdly, actio non accrevit infra sex annos; fourthly, that from and after Oct. 28, 1799, mentioned in the plaintiff's declaration, being the time when the last charge but one was made on the schedule annexed, and probably intended to refer to the settlement of the accounts of the ship George, hereafter mentioned, more than six years had elapsed; and fifthly, that the suit was not commenced within six years next after the cause of action set forth by the plaintiff, if any existed.

To the second, and following pleas, the plaintiff made the general replication of merchant's accounts. The defendant rejoined that at the time of the plaintiff's action there were no open and running accounts between the plaintiff's intestate and the defendant's testator; but that all accounts, concerns and transactions between them were liquidated and closed at the time of, and more than six years before, the commencement of the action.

The plaintiff surrejoined that the accounts, promises and causes of action accruing between said Waite and Dunn as merchants, and concerning the trade of merchandize, were open and running on the fifteenth day of August 1801; that Dunn removed out of the Commonwealth of Massachusetts, and continued absent till his death in 1805; that Waite died Nov. 9, 1805, and no administration was taken out on his estate till Feb. 19, 1822; that the will of Dunn was not filed, and letters testamentary granted, till June 6, 1826; and that said accounts have always remained open and unsettled; and concluded with a traverse of the rejoinder, that the same were liquidated and closed at the time of, and for more than six years before, the commencement of the plaintiff's action.

On this traverse issue was taken and joined; and the cause was tried before the Chief Justice on both the issues.

The plaintiff offered in evidence certain account books proved to have belonged to Waite; being his day-books, the entries in which were mostly in his hand writing, and his ledgers, in which were many entries proved to be in the hand writing of Dunn, the last of which was dated April 25, 1796; as competent evidence to prove such charges as might have been substantiated in this manner by the suppletory oath of the party, if living. To the admission of this evidence the defendant objected; but the objection was overruled, and the books admitted.

Among other entries on the books, copied into the schedule, was the following:--" Oct. 28, 1799. For cash paid John Waite, Esq. per receipt of yours taken up this day, $ 15." The exhibition of the book in support of this charge was objected to. To support the charge, the plaintiff produced a promissory note signed by Dunn, payable to John Waite, with a sum of fifteen dollars indorsed thereon in his hand writing, as received from William Waite. This evidence was objected to, as inadmissible to support this item of charge. But both these objections were overruled, and the charge, accompanied by the note and the receipt thereon, were admitted to be read; though the charge alone was not admitted as legal evidence; but all together being competent for the jury to consider, as furnishing a degree of presumptive proof; all the parties to the transaction being dead, and the papers being in the hands of the administrator, and by him produced.

Certain account books of the original entries and charges of Waite against the owners of the ship George, the owners being himself, James Dunn and Francis Waite, were also offered by the plaintiff to support a charge in the account-book of Waite against Dunn of $ 698,49, as the balance of the ship George's account adjusted by Waite and Dunn, Oct. 4, 1799. The admission of these books as evidence was objected to; but they were admitted for the purpose proposed, so far as they contained charges in the hand writing of Dunn, on the ground of their being admissions on his part; but no farther, nor for any other purpose. It appeared by the plaintiff's testimony, that this ship was captured by the Spaniards, and condemned, in 1797.

The plaintiff also produced in evidence a paper book in the handwriting of Dunn, containing mutual accounts of debt and credit between himself and Waite, and between himself and the owners of the ship George, and between each of the owners and the ship; the last entries therein being dated Feb. 26, 1798; and the balances for and against each of the owners being therein carried to their respective private accounts; and being also brought into private account between Dunn and Waite; offering the book as evidence of the admission of Dunn of the truth of the entries therein contained in favor of Waite. It was hereupon insisted by the counsel for the defendant that the book of accounts was to be taken together, if considered by the jury at all; and that those parts and entries which went in discharge of Dunn, and to reduce the balance against him, were entitled to equal weight and credit with those which went to charge him. And the Chief Justice instructed the jury that they were to examine this book for themselves, and draw their own conclusions from the facts and statements it contained, and the debts and credits it exhibited; and that, like any other evidence laid before them, it was a subject for their consideration.

It was likewise contended by the defendant's counsel, that this paper book was a statement or duplicate of various accounts between said Dunn and Waite, drawn off by Dunn, and shewing all their accounts; as it was described by the Plaintiff's counsel on producing it; and that it was in fact, an account stated between the parties subsequent to the loss of the ship George, as appeared by the last dates therein; and requested the Chief Justice so to instruct the jury. But this he declined; and left it as a fact for the jury to decide whether it was an account so stated.

And it was also contended by the defendant's counsel, that inasmuch as said book was produced by the plaintiff, and had been in his possession and the possession of William Waite, or other persons in interest, and as it appeared on inspection, that leaves and part of leaves, once belonging to, and constituting parts of said paper book were by some means torn and removed therefrom; it was incumbent on the plaintiff to account for, or explain the loss; and that not being otherwise accounted for or explained, it was evidence either that such portions were fraudulently removed, or that they were lost by time and accident; and that the jury might presume, in the absence of such explaining evidence, that if the book had been entire, and especially the whole of the last leaf preserved, it would shew a settlement and liquidation and close of all accounts between Dunn and Waite, including those of the ship George. And the Chief Justice was so requested to instruct the jury. On this head he instructed them, that it was a common principle that fraud was not to be presumed; and that there was no direct proof in the case that any of the leaves, or parts of leaves, of the book had been removed or torn off by design, or with a fraudulent intention. If any proof existed of the fact supposed, it must result from inspection of the book itself. That they would therefore examine the book carefully, with this view; and also to ascertain whether the leaves had been lost by time and accident. That they would also examine and see if the book did not furnish same proof that no such settlement had been made on the last leaf, as suggested, inasmuch as the charges and credits on the page in question, and the page opposite, had never even been footed. That the whole was a question of presumption, and exclusively within their province.

The defendant's counsel also contended that the statement of the account of William Waite with the ship George, and the charge of balance to James Dunn in Waite's account, Oct. 4, 1799, was evidence of an account stated by Waite at that time; and requested the Chief Justice so to instruct the jury. His instructions to them were, that the statement of the account referred to, certainly was evidence in the case; but whether it was evidence proving any account stated, liquidated and closed by and between Waite and Dunn, was a fact for them to decide, on examination of the whole evidence relating to that point.

The defendant's counsel also contended that the account annexed to the Plaintiff's writ exhibited, and was in form and fact an account stated Aug. 15, 1801; and requested the Chief Justice so to instruct the jury; which he declined, for the reasons given in the last instruction.

It was proved by the defendant that the will of James Dunn was allowed and approved in the Prerogative Court of Ireland in Dec. 1805; and it was contended by his counsel, that all dealings having ceased between ...