Setohel v. Keigwin

• Court: Connecticut Supreme Court
• Writing for the Court: ANDREWS, C. J.
• Citation: Setohel v. Keigwin, 18 A. 594, 57 Conn. 473 (Conn. 1889)
• Decision Date: 09 September 1889
• Parties: SETOHEL et al. v. KEIGWIN.

18 A. 594

57 Conn. 473

SETOHEL et al.

v. KEIGWIN.

Supreme Court of Errors of Connecticut.

Sept. 9, 1889.

Appeal from court of common pleas, New London county; CRUMP, Judge.

Action by Charles F. Setchel and another, administrators of Denison P. Coon, to recover $116.27, for goods sold and delivered by the intestate. The charge of the court was as follows: "The pleadings in this case present a very simple issue, and it is not necessary that I say more than a few words to you about it. The plaintiffs, as administrators, are suing for the balance of a book-account against the defendant. The books of the decedent have been put in evidence, and will be submitted for your inspection in the jury-room. They show a balance due of $116.27. The account covers a period from December 11, 1875, to September 12, 1887, and the entries are admittedly in the handwriting of Mr. Coon, and apparently made in the ordinary course of business. By our law this class of evidence, to-wit, the books and memoranda of deceased persons, as the best and often the only evidence that a case of this sort is susceptible of, are admissible. In the absence of the person who made the entries, the books are, to a certain extent, his voice speaking to you, but they are to be taken with caution, as against positive evidence, and to be viewed in the light of all the surrounding circumstances. The plaintiffs also claim that these books are to an extent corroborated by a declaration made by Mr. Coon to his clerk, last winter, that he had a bill against the defendant. The defendant, on her part, testifies that she was a cash customer; that she did not know and never was informed that any bill against her existed; that none was ever presented to her; and that, to the best of her belief, she does not owe it. She does not, however, say that she recollects that she either did not have or has paid for the several items of the bill. It would be manifestly impossible for the best memory to recall these various items of an account running for twelve years, so that after all you will have to fall back upon the circumstances surrounding these transactions, and from the inferences that may reasonably be drawn from them arrive at your conclusion; remembering that the burden is on the plaintiffs to prove their claim by a preponderance of evidence, and that in the absence of contradiction, explanation, or of some suspicion cast upon their accuracy by the books themselves, or from extraneous circumstances, entries of this sort, apparently made in the ordinary course of business, are presumptively correct. That such a suspicion attaches to this account the defendant claims to have shown, and it is for you to say, gentlemen, from all the evidence submitted to you, whether the account is a just one, and remains unsatisfied or not, and accordingly frame your verdict." Verdict for plaintiffs for the full amount of the account, and defendant appeals.

W. H. Shields, for appellant. J. J. Desmond, for appellees.

ANDREWS, C. J. Each of the errors assigned in this case is a portion of the charge of the judge to the jury. It is claimed that each was improper and erroneous. The charge consisted wholly of a discussion and comments upon the evidence which was before the jury. The account-books of the plaintiffs' decedent had been laid in, and were evidently in the presence of the judge and the jury at the time he was speaking. The case turned upon their correctness, and in reference to these...