Taylor v. Tucker

• Decision Date: 31 March 1846
• Docket Number: No. 32.,32.
• Citation: 1 Ga. 231
• Parties: William Taylor, plaintiff in error. vs. William Tucker, defendant in error.
• Court: Georgia Supreme Court

1 Ga. 231

William Taylor, plaintiff in error. vs. William Tucker, defendant in error.

No. 32.

Supreme Court of the State of Georgia

MARCH TERM, 1846.

This was an action brought by the defendant in error against the plaintiff in error, predicated upon an open account for lumber, and was tried before Judge Warren, in the Superior Court of the county of Randolph, at April Term, 1846.

For the facts and circumstances of the case, and the matters of error alleged, see the decision of the Supreme Court.

Wm. Taylor, for plaintiff in error.

Contended that the plaintiff below could not support his books of original entries by his own oath alone; and in support of this position, cited Boyd vs. Lads-den, 4 Me Cord, 76; Slade vs. Teasdale, 2 Bay. 172; 2 Bay. 162; 3 Phil, on Ev. 686. The common law did authorize merchants' and tradesmen's books to be made evidence, under certain restrictions. But the common law was changed by the statute of 7 James 1, ch. 12, which required such suits to be brought within a year.—3 Black. Com. chap. 23, top page, 291; 1 Phil. Ev. 266.

2d. To be made evidence, the tradesman should show by his own oath, that the books tendered are his books of original entries; that they contain regularly the dealings between the parties; that he had no clerk; that the articles charged were delivered; and that he keeps fair and honest books by those who have traded with him. — Vosburghvs. Theyer. 12 Johns. Rep. 461; Linnell vs. Sutherland, 11 Wendell, 668; 4 John. 483; 6 ib. 306.

3d. Where goods are sold and delivered by a clerk, the clerk himself must he introduced.—1 Phil. Ev. 263-4.

The books must show items sold and delivered by the tradesman, and those sold and delivered by the clerk, and the distinction must be made by evidence — Kaughley vs. Brewer, 16 Sergt. §Rawle, 133-4; Wright vs. Sharp, 1 Brown, 344; Smith vs. Lane, 12 Sergt § Rawle, 80.

Goods delivered to a third person, even the servant of the purchaser, can not be proved by the books.— Kerr vs. Love, 1 Wash. R. 172; Deas vs. Darby. 1 Nott 4" MeC. 436. When goods are sold upon a written order, the order itself must be produced.— Smith vs. Lane, 12 Sergt. § Rawle, 80.

Books, to be evidence, must show that the entries were made at the time of delivery of the goods; otherwise the books must be rejected.—1 Rawle's R. 441; 8 Phil. Ev. 696.

It must appear that the party keeps regular books, and not upon scraps of paper.— Lynch vs. McHugo, 1 Bay. 23; Prince vs. Smith, 4 Mass. 455.

David Kiddoo, for the defendant in error.

For the general law relative to the admissibility of shop-books in evidence, cited Greenleaf on Evidence, vol. 1, pp. 142-148, and notes.

Goods delivered by servant during the day, and the entries made by the master at night, or on the following morning, from memorandums make by the servant: the entries considered original entries, and admissible in evidence, —1 Greenleaf Ev. 142, in notes; Ingraham vs Bockious, 9 S. # R. 285.

Irregular memorandum books received as books of original entries.— Cogswell vs. Dolliver, 2 Mass. R. 217.

Entries transcribed from slate into book, considered original entries.—13 Mass. R. 427; Faxon vs. Hollis. It is no objection to book that it is kept in ledger form.— ib. For the distinction between competency and credibility of book.—2 Mass. R. 217. The oath of the party is competent and admissible, to prove that his books are books of original entry.

By the Court — Nisbet, Judge.

This was an action of assumpsit, brought by the defendant in error against the plaintiff, to recover a bill of lumber. A bill of particulars was appended to plaintiff's writ, which was admitted in evidence as his original entries, being first proven to be such by the oath of plaintiff, and proof being had also that the plaintiff was in the habit of keeping correct accounts. The lumber was delivered, it seems, in part, by a person who swore that he kept memoranda of his sales, and reported them to the plaintiff; the plaintiff swearing that a part of the entries made in his account were made from the memoranda of his sawyer, as he reported to him; the sawyer further proving that he did not act as clerk for the plaintiff, but only as his employee, to saw and deliver lumber.

The points of error taken, grew out of the admission of the plaintiff to prove his own account, and the admission of the account itself as a book of original entries; and also out of the charge of the court in relation to the account.

The first error assigned is, that the plaintiff in the court below was permitted to prove, by his own oath, that the account sued upon was his .original entries, and that he had no other book of original entries. In disposing of this assignment, it is proper to premise, that the record discloses that the plaintiff kept no clerk, and that the account proven, was the identical paper upon which the plaintiff made his original entries; and that he made no other entries but these. The account contained various items of lumber, of different kinds, entered at different times, with the price of each item footed, and 25 per cent, upon the whole sum added — which addition of 25 per cent, made what is called, in the argument, the credit price of the lumber.

In many States of our Union, the admission of the parties' own books and his own entries, has been authorized and regulated by statute, as in Vermont, Connecticut, Maryland, Virginia, North and South Carolina, and some others. In almost all the rest, as in our own State, they have been admitted without statute authority, under the common law. This rule of evidence has been usually held a departure from the common law. I see not why it should be so held. Mr. Greenleaf says, in speaking of this kind of evidence: " In general, Its admission will be found in harmony with the rules of the common law, the entry being admitted only when it was evidently contemporaneous with the fact, and part of the res gestae."—Oreenleaf's Ev. sec. 118.

The testimony is admitted ex necessitate rei, and being the act of the party, should be received with great caution. The caution with which it has been admitted, is manifest in those limitations and restrictions which the courts have thrown around the rule. It is so carefully guarded that it can do no harm, and is fruitful of good, particularly to that class of small dealers whose business will not permit them to keep a clerk. The rule was at first limited to merchants and shopmen, but now embraces all persons having continuous dealings with another, and who have no other way of proving their accounts. In South Carolina, however, the books of shopkeepers, mechanics and tradesmen, are only admitted.—2 Bay, 173; 2 McGord, 328; 4 McCord, 76.

The objections to books of original entries, are to their competency and their credibility. They are first to be submitted to the inspection of the court, and if found free from all fraudulent appearances or circumstances, such as material and gross alterations, false additions, &c, and appear to contain the first entries or charges by the party, made at or near the time of the transaction to be proved, they are competent. If the contrary is discoverable from the books themselves, or comes out upon the examination of the party, they ought to be rejected. The credibility, both of the books and of the party, is to be weighed by the jury, and depends upon various circumstances, of which they are the judges.—2 Mass. 221; 13 Mass. 427; 2 Conn. R. 633; 5 Conn. R. 443; 12 Johns. 461; Greenleaf's Ev. sec. 118-19; Cowen & Hill's Notes to 1 Phil. Ev. 266.

From the Roman law we have borrowed the " juramentum suppletivum;" the suppletory oath of the party. By the Roman law, the books, regularly and fairly kept, in the usual manner, were deemed prima facie evidence of the justice of the claim, and the oath of the party was then admitted to make up the "plena probatio." So with us, when the books are found by the court to be regular and fair, by inspection, they lay the foundation tor the suppletory oath. It is usual and necessary also, to require prooffrom persons who have had dealings with the party, that he is in the habit of keeping correct accounts. And in some countries, as in Scotland, it is necessary to lay the foundation of all this testimony, by showing, by aliunde testimony, a course of dealing between the parties. Then the limitations of the rule are, that the books must appear to be the original entries of the party, made at, or nearly at the time, when the transaction to be proven occurred; so near as to be part of the res gestae. The time at which the entries must be made, appears to depend very much upon the circumstances of each case. They must be free from all circumstances and appearances which indicate a fraudulent...