Bailey v. Harvey

Bingham, J. The court at the trial found, upon evidence, that the plaintiff, by reason of insanity, was not competent to be sworn as a witness. Neither party can testify when the adverse party is an executor, administrator, or insane person, if the executor, administrator, or guardian of the insane person does not elect to testify, unless it clearly appears that injustice may be done. G. L., a. 229, ss. .16,17. To entitle the defendant to testify, he' should bring himself within the rule established in cases where the adverse party is an executor or administrator. When the deceased, if alive, could testify about the same matters, the adverse party is •excluded. In this case, the occurrences in dispute happened between the parties when the plaintiff was sane. Hoit v. Russell, 56 N. H. 559; Chandler v. Davis, 47 N. H. 462. The defendant •claims that the insane person intended by Gen. Laws, c. 229, s. 16, is one who has been decreed insane in proceedings under Gen. Laws, o. 186, ss. 1, 2. Section 16 is not in terms limited to such a ■case, and no reason appears implying such a limitation. The plaintiff, by reason of insanity, being incompetent to testify, a decree upon an inquisition establishing the fact of his insanity was not necessary for the exclusion of the defendant’s testimony as to transactions' concerning which the plaintiff, if sane, could contradict him. The defendant’s book of accounts was incompetent to prove payments of larger sums than $6.67. Rich v. Edredge, 42 N. H. 158; Bassett v. Spofford, 11 N. H. 167. But the defendant offered the book,, supported by his oath, to show the payment of sums of money not exceeding $6.67. In this state, account-books, properly ■supported, are admissible as evidence of goods sold and labor performed. Eastman v. Moulton, 3 N. H. 157; Snell v. Parsons, 59 N. H. 521. They are admissible, also, to prove a charge of a sum ■of money not exceeding $6.67, but only where they would have been received in support of the charge had it been for a barrel of flour or a pound of beef. The effect of the decisions is to extend the rule permitting such proof of the delivery of goods sold, and the performance of labor so as to include charges of sums of money not exceeding $6.67. Bassett v. Spofford, supra; Dame v. Whitney, 10 Me. 9; Bank v. Knapp, 3 Pick. 109; Burns v. Fay, 14 Pick. 8 ; Turner v. Twing, 9 Cush. 512; Davis v. Sanford, 9 Allen. 216. *155 The charges being made by the party, the books are received with great caution and subject to many limitations. They have been refused admission to prove the consideration of a promissory note ; the delivery of goods to a third person; the delivery of goods in performance of a special contract; to prove to whom credit was given, delivery being admitted; or any matter collateral to the issue of debt and credit between the parties. Keith v. Kibbe, 10 Cush. 36; Rindge v. Breck, 10 Cush. 43; Kerr v. Love, 1 Wash. 172; Batchelder v. Sanborn, 22 N. H. 325; Phillips v. Tap per, 2 Penn. St. 323. But after an order to deliver goods to a third person is proved by competent evidence aliunde, the delivery itself may be proved by the books and suppletory oath of the party; in seire facias sur mechanics’ lien, charges made against the owner are competent to show the amount of materials furnished, and the facts which render the building liable may be shown by evidence aliunde; where money is advanced or goods delivered, so that a right to charge exists at the time, though it may be the understanding that the claim is to be adjusted afterwards by being set off against another debt, it is a proper matter for book charge ; and in the performance of a special contract it is proper that the party should each day charge the goods he delivers, and the charge is evidence of the amount. Mitchell v. Belknap, 23 Me. 475; Church v. Davis, 9 Watts 304; Hickock v. Ridley, 15 Vt. 42; Swain v. Cheney, 41 N. H. 232. Although a book of accounts may be incompetent to prove the performance of a special contract, yet, where goods are delivered from time to time in the performance of the contract, it is proper to charge them upon book, and such charges are competent evidence, not of the performance of the contract, but of the fact of the delivery of the goods and their amount. The defendant, having introduced evidence tending to prove the payment of the debt, offered in support of this evidence his book of accounts, with his suppletory oath, to show that the plaintiff had received from him various sums of money not exceeding $6.67 at a time. Whether the plaintiff had received such sums of money was a question not collateral, but directly in issue, and the book should have been admitted in proof of such items. Verdict set aside. Dob, C. J., did not sit: the others concurred.