Underwood v. Parrott

• Decision Date: 31 December 1847
• Citation: 2 Tex. 168
• Parties: AMMON UNDERWOOD v. CATO W. PARROTT
• Court: Texas Supreme Court

2 Tex. 168

AMMON UNDERWOOD

v.CATO W. PARROTT

Supreme Court of Texas.

December Term, 1847.

Appeal from Brazoria County.

Account books, containing original entries, are not of themselves evidence, but they may become evidence by the intervention of extrinsic circumstances. [[[[

Where an account, copied from a tradesman's book, had been compared with the original entries, and found correct, by the witness, who was himself a clerk of the tradesman at the time such account was made, and was given in evidence without objection, it is no ground of objection in this court that the books themselves were not produced. [15 Tex. 441;16 Tex. 222;18 Tex. 249.]

In such a case it was error in the court to exclude from the jury all such items or articles charged in the account, the sale and delivery of which could not be distinctly proven by the testimony of the witness, given upon his own recollection, independently of his entries.

The provision in the act of 1840, which declares that “the adoption of the common law shall not be so construed as to adopt the common law system of pleading; but the proceedings, in all civil suits, shall, as heretofore, be conducted by petition and answer,” was not intended to prescribe the rules, but to designate the system of pleading to be observed in our courts.

Under this system the pleadings may be carried beyond the answer; and a replication to new matter set up in the answer is not only admissible, but would seem to be most consonant to principle, and convenient in practice.

But, according to the practice long pursued, and acquiesced in by our courts, evidence which seems to have the effect of rebutting that adduced in support of the answer, or of repelling the legal effect of the latter, must be received, though it be in proof of no averment in the pleadings.¹

It is not error in a court to permit a remittitur of a part of a verdict to be entered and render judgment for the residue.

Parrott sued Underwood for the proceeds of cotton, alleged to have been shipped and sold by the latter for the former. The defendant pleaded a setoff of an account embracing numerous articles of merchandise, alleged to have been sold and delivered by him to the plaintiff.

On the trial, the defendant, to prove this account, introduced a witness, John T. Gill, who testified “that he was the defendant's clerk when the account was made;” that he had a recollection and knowledge of some of the items, which he specified, and that those charges were correct; that he knew that Parrott had gotten from Underwood some other of the articles charged, which he also specified, but that he did not remember the quantity; that many of the articles of said account were charged by him; that he had compared said account with the journal and ledger, and believed the whole to be correct; that Parrott was in the habit of dealing with Underwood, and the latter was in the habit of keeping correct accounts.

A verdict having been rendered for the plaintiff, the defendant moved for a new trial on the ground that the same was contrary to law and the evidence. This motion was overruled, but the court, being of opinion that the verdict was for a sum exceeding that established by the proofs, permitted the plaintiffs to remit the excess, and gave judgment for the residue. From which the defendant appealed.

A bill of exceptions is contained in the record, substantially as follows:

“On the trial of this cause, the court charged the jury that they would not regard the testimony of John P. Gill, in relation to the account of the defendant, except so far as he testified to the sale and delivery of articles, of his own knowledge.

When the plaintiff's counsel interrogated the witness, John P. Gill, in relation to the sale of the slaves from the plaintiff to the defendant, the defendant's counsel objected to the introduction of any testimony in relation to said sale, the plaintiff having alleged nothing in regard to it in his pleadings, which objection the court overruled.

When the plaintiff's counsel interrogated John P. Gill, in relation to the sale of the slaves from Parrott to Underwood, the counsel for the defendant stopped the witness, and asked him if there was a written contract in regard to said sale. To which he replied, he believed there was. The counsel for the defendant then objected to his testifying in regard to said sale; the written contract, he contended, being the highest and best evidence, should be produced, or its absence accounted for. This objection was overruled by the court, and the witness permitted to testify in regard to the sale,” etc. To all which the defendant's counsel excepted.

Harris and Duval, for appellant.

The judgment of the court below ought to be reversed,

1st. Because the court erred in charging the jury that they could not regard the testimony of Gill relative to the account pleaded by defendant as a setoff, except so far as he testified to the sale and delivery of the articles, from his own knowledge. This testimony was as conclusive of the correctness of the account as if the defendant's books had been in evidence. Suppose the books had been introduced, could the witness have been thereby enabled to give any more positive evidence in regard to the sale and delivery of each article charged in the account than he did give, after having, as he testified, compared the account with the books, and found the same to be correct? If a merchant was required to prove the actual sale and delivery of every article, as charged in his books, but a small portion of his accounts could be collected. Though the books of a tradesman are generally required to prove his accounts, there are many exceptions to the rule, and the character of Gill's testimony was such as to render this one of those exceptions. Swift's Ev. p. 81; Phil. Ev. p. 199.

Moreover, it has been the settled policy of modern courts to relax, as far as possible, the strict rules of the common law relative to evidence, in their application to commercial transactions. The charge of the court, in this instance, goes to sustain one of those rules, in all its ancient rigor.

One thing is clear; the court below should not have narrowed down the effect of Gill's testimony, as was done in its charge, but should have allowed it to go to the jury, as evidence proper for their consideration. Peake's Evidence, p. 20, note T. 2d. Because, after the trial had been gone into, the plaintiff was permitted to introduce evidence to show that the defendant was indebted to him upon another transaction not mentioned in the pleadings, and one altogether different and distinct from that which he had sued upon. The defendant was thus forced to contest a new demand on the part of the plaintiff, suddenly sprung upon him after the trial upon the other issues had been commenced.

3d. Because, having decided that the verdict was excessive, the judge should have set it aside, and allowed the motion for a new trial. He could not properly release a part of a verdict, and order judgment to be entered up for the balance. Laws of Texas, vol. 4, p. 91, sec. 25.

Buckley, for the appellee.

No brief furnished the reporters.

Mr. Justice WHEELER delivered the opinion of the court, Mr. Justice LIPSCOMB not sitting.

This case comes before us on appeal; and the charge and rulings of the court, objected to, are presented in the following exceptions taken at the trial:

1st. The court charged the jury that they would not regard the testimony of John P. Gill in relation to the amount of the debt, except so far as he testified to the sale and delivery of articles of his own knowledge.

2d. The court permitted the plaintiff to introduce evidence of a sale of certain slaves, without any averment in his pleadings in regard to such sale.

3d. The court permitted parol testimony of a contract of sale which was evidence by writing, without requiring the plaintiff to account for the nonproduction of the writing; and

4th. Finally it is contended that the court erred in permitting a remittitur of a part of the verdict, and in giving judgment for the residue.

No objection appears to have been taken to the nonproduction of the original books of entries; but copies or extracts from them, compared by the witness and found correct, were given in evidence without objection. It cannot, therefore, be now objected that the original entries were not produced. Did the judge err, then, in excluding from the jury the entries and testimony of the witness, Gill, except so far as he testified to the actual sale and delivery of specific articles of his own knowledge.

Account books containing original entries are not of themselves evidence. Peake's Ev. 15; 1 Phil. Ev. 266, note 491. They possess no intrinsic force as proof against third persons. Id. 265, note 489. But they may become evidence by the intervention of extrinsic circumstances. Id.; 8 J. R. 211. Some of the circumstances which have been held sufficient prima facie to accredit books of entries are the suppletory oath of the party making them, in case of his death, proof of his hand-writing, proof of delivery of the articles by the clerk, or if he be dead, of his hand-writing; or if the party had no clerk, proof first of that fact; second, that there had been regular dealings between the parties; third, that some of the articles charged were delivered; fourth, that the books produced are the books of account of the party; and fifth, that he keeps fair and correct books.

In several of the states, as Connecticut, Maine, Vermont, New Hampshire, Massachusetts, Pennsylvania, Rhode Island, North Carolina, South Carolina, Delaware, Maryland, Tennessee, Ohio and Illinois, account books containing the original entries are received in evidence when accompanied by the suppletory evidence of the oath of the party. Id. Cow. & Hill's notes to vol. 1, note 491. In some of these states this departure from the English rule of evidence rests on statutes, but in others not,...