Lassone v. Boston & Lowell Railroad

*352 Smith, J. The book of account of Woodward, supported by the suppletory oath of his administrator, would be" competent evidence against Benton in a suit by the administrator against him to recover for the repairs of the wheel. Dodge v. Morse, 3 N. H. 232. Is the book evidence against third parties ? Account-books of a party are not evidence when the dealing between the debtor and creditor is, as to the parties to the suit, a mere collateral matter. Woodes v. Dennett, 12 N. H. 510; Little v. Wyatt, 14 N. H. 23; Batchelder v. Sanborn, 22 N. H. 325; Leighton v. Sargent, 31 N. H. 119; Woods v. Allen, 18 N. H. 28; Harris v. Burley, 10 N. H. 171; Putnam v. Goodall, 31 N. H. 419; Brown v. George, 17 N. H. 128. These decisions were prior to the act of 1857 (Laws 1857, e. 1952; Gr. L., e. 228, s. 13), enabling parties to testify as witnesses in chief. But account-books are still admissible, notwithstanding the party may testify as a witness in chief. Swain v. Cheney, 41 N. H. 232; Bailey v. Harvey, 60 N. H. 152; Sheehan v. Hennessey, 65 N. H. 101. Written entries by persons deceased may, under some circumstances, be shown in evidence against third persons. There is a class of cases which hold that where a person has peculiar means of knowing a fact and makes a written entry of the fact against his interest at the time, it is evidence of the fact as against third persons after his death, if he could have been examined to it in his lifetime. Higham v. Ridgway, 10 East 109, is a leading case of this character. The midwife’s book of account was received for the purpose of showing the date of the birth of a person, which became important upon the question whether he was twenty-one years of age when he suffered a recovery to bar an estate tail. The entry made in-the day-book under date of April 22, 1768, and .marked paid in the ledger October 25, 1768, was held admissible upon the ground that the party had peculiar means of knowing the fact, and that the entry was against his interest at the time it was made. “Here it appeal’s distinctly from other evidence,” said Lord Hllenborough, “ that there was the work done for which the charge was made, . . . and the discharge in the book, in his own handwriting, repels the claim which he would otherwise have had against the father from the rest of the evidence, as it now appears. Therefore, the entry made by the party was to his own immediate prejudice, when he had not only no interest to make it if it were not true, but he had an interest the other way not to discharge a claim which it appears from other evidence that he had.” Warren v. Greenville, 2 Str. 1129, is a similar case. To fortify the presumption that a surrender of a portion of the estate in question should be presumed from lapse of time, the debt-book of a deceased attorney was produced, in which he made charges for suffering- the recovery, and other charges for drawing and engrossing the surrender. The charges appeared by the book to have been paid. This was held to be good evidence *353 after the death of the attorney, who, if living, might have been examined to the fact. See, also, Spiers v. Morris, 9 Bing. 687, Marks v. Lahee, 3 Bing. N. C. 408, Whitnash v. George, 8 B. & C. 556, Goss v. Watlington, 3 B. & Bing. 132, and Stead v. Heaton, 4 T. R. 669. In Middleton v. Melton, 10 B. & C. 317, the entry made by a deceased collector of taxes in a private book kept by him for his own convenience, in which he charged himself with the receipt of sums of money, was held to be evidence of the fact of the receipt of the money in an action against a surety on his official bond, although the parties by whom the money had been paid were alive and might have been called as witnesses. The decision went upon the ground that the entry was to tire prejudice of the party who made it. To the same effect is Smith v. Cartwright, 1 C. & P. 218, where the books of a collector of taxes charging himself with the receipt of money, also the books of an insurance company charging itself with receiving money, were admitted as tending to show an occupancy of certain premises by a party, in an action between third parties. There is another class of cases in which entries have been received in evidence against third persons, if the entries were made by a person having knowledge of the fact entered, contemporaneously therewith, and in a course of business. Price v. Torrington, 1 Salk. 285, is a leading case of this character. The book kept by a clerk, in which was set down at night an account of the beer delivered out by the draymen during the day, and to which they set their names, according to the usual way of the plaintiff's dealing, was held good evidence of a delivery to the defendant, the drayman who delivered the beer sued for being dead. The cases are numerous where evidence of this kind has been received, upon the ground that the persons who made the entries “ had no interest to misstate what occurred.” In Patteshall v. Turford, 3 B. & Ad. 890, a memorandum of the fact and time of service, endorsed by one P on a duplicate notice to quit, was, after the death of P, held admissible as “ being a minute in writing, made at the time when the fact it records took place by-a person since deceased, in the ordinary course of his business, corroborated by other circumstances which render it probable that the fact occurred.” In Nicholls v. Webb, 8 Wheat. 326, the record-book of a deceased notary was held admissible. The entry in the margin was, “ Endorser duly notified 19th [17th] July, 1819, the last day of grace being Sunday, the 18th.” It was objected that the evidence was in the nature of hearsay. “But the answer is,” said Judge Story, “that it is the best evidence the nature of the case admits of. If the party is dead, we cannot have his personal examination on oath; and the question then arises whether there shall be a total failure of justice, or secondary evidence shall be admitted to prove facts where ordinary prudence cannot guard against the effects of human mortality.” *354 In Nourse v. M’Cay, 2 Rawle 69, to show that a deed was a forgery, the account-book of a deceased magistrate, showing charges for acknowledgments of three other deeds on the same day, and no charge for the acknowledgment of the deed in question, was held admissible. An entry made by a deceased clerk of a notary of the dishonor of a bill of exchange (which was presented by the clerk), made in the usual course of business, at the time of the dishonor, in the book of the notary, was held admissible, in Poole v. Dicas, 1 Bing. N. C. 649, upon the ground that the clerk had no interest to misstate what occurred. An entry in a deceased attorney’s book, made in the usual course of business, produced to show the date of a lease, was held admissible in a suit between third parties, in Reece v. Robson, 15 East 32, where it was said,— “The ground upon which this evidence has been received is, that there is a total absence of interest in the persons making the entries to pervert the fact, and at the same time a competency in them to know it.” “ What a man has actually done and committed to writing when under obligation to do the act, it being in the course of the business he has undertaken, and he being dead, there seems to be no danger in submitting to the consideration of the jury.” Welsh v. Barrett, 15 Mass. 380. In that case, the book of a deceased messenger of a bank, in which, in the course of his duty, he entered memoranda of demands and notices to the promissors and endorsers upon notes left in the bank for collection, was received for the purpose of proving a demand on the maker and notice to the defendant as endorser of a nóte left in the bank for collection. The entry was held admissible, on the ground that when the best evidence is, without the fault of the party, out of his power, so that it cannot be produced, the next in degree must be resorted to or justice would fail. And see Halliday v. Martinet, 20 Johns. 168. Many of these cases are cited and commented upon in Batchelder v. Sanborn, 22 N. H. 325, and their doctrine'was adopted in Wheeler v. Walker, 45 N. H. 355, where it was held that entries made in the usual course of business, by a person since deceased whose duty it was to make them, and who -had at the time no interest to misrepresent the facts, are admissible in evidence against third parties. The case at bar does not fall within either of these classes. The entry was made in Woodward’s usual course of business, but was not against his interest; nor can it be said that he had no interest to misrepresent. Was the evidence for these reasons inadmissible? We think it was admissible, both on principle and authority. In State v. Phair, 48 Vt. 366, the defendant was indicted for the murder of Mrs. Freeze. After her murder he pawned a watch. To identify the watch as hers, a book kept by Parmenter, a deceased jeweler, in which was recorded a description of the watches repaired by him, was received in evidence. The entries *355 as to the watch in question were as follows: “Dec. 11, 1871. Mrs. Freeze, gold anchor, Freres [maker], No. 56376 — cleaning screw, repairing jewel, $1.50.” “Jan. 17, 1873. Mrs. Freeze, gold anchor, Freres, No. 56376 — cleaning and jewels, $2.00.” The evidence was held admissible, upon the ground, said the judge who delivered the opinion of the court, that they were made by Parmenter “ in the regular course of his business, and it was his business to make them. The only use that could be made of the entries as evidence was to identify the watch' described by them. Ever since the Earl of Torrington’s case .... it has been customary to admit such evidence. The principle seems to be founded in good sense and public convenience.” It does not appear from the report of the case that the entries were marked paid, or that the question of the admissibility of the book turned on any such point. Augusta v. Windsor, 19 Me. 317, was an action to recover for the support of a pauper. It became important to show at what time one Linscott had his leg broken, and, for the purpose of fixing the date, the day-book of the physician who attended Linscott was received in evidence. The book contained a charge, under a certain date, against him for reducing a fracture in his leg. The entry was in the handwriting of the physician, who subsequently died. It does not appear from the report of the case that the book showed payment of the charge. The following extracts from the opinion of Mr. Justice Shepley are appropriate on the present occasion: “In whaheases entries made by pei-sons deceased on their books and papers in the course of their business should be admitted as testimony, and on what precise principles, has occasioned no little discussion. It will be difficult to reconcile all the decided cases .... The case now under consideration would come within the rule as stated by Justice Taunton [Patteshall v. Turford], and be included in the second class of cases named by Justice Parke [where the entry is one in a chain or combination of facts, and the proof of one raises a presumption that another has taken place] ; for the breaking of the limb and the services of Dr. Neal had been proved, and it would be reasonable to expect that the time of performing them would appear from his books. “Whether the entry, to be admissible, should appear to be against the interest of the deceased person who made it, is discussed by Mr. Starkie in his treatise upon evidence, and his reas'ons for concluding that this circumstance does not afford a sufficient test for the admission of such entries, and the rejection of all others, is very satisfactory..... “ It has been considered in several of the states that neither the best administration of justice, nor any well established rule, required the adoption of the limitation that the entry must appear to have been made against the interest of the person making it; and the decisions in this country are more in accordance with those *356 of Warren v. Greenville and Patteshall v. Turford than with the most of the English cases. This court is not satisfied with the reasoning upon which that limitation was introduced, and does not feel obliged to adopt it.” See, also, 1 Stark. Ev. 299-301 (3d Am. ed.), 1 Phil. Ev. 347, and C. & H. and Edwards’ Notes. In Higham v. Ridgway the entry showed the creation of the very charge of which it showed the subsequent liquidation. It was an entry against Hewitt’s (the midwife’s) interest so far as it showed payment, and for his interest so far as it showed services rendered, for which he was entitled to be paid. Judge Story, in commenting on this case in Nicholls v. Webb, 8 Wheat. 326, 335, remarks as follows: “It is true that Lord Alenborough, in giving his own opinion, laid stress upon the circumstance that the entry admitting payment was to the prejudice of the party, and, therefore, like the case of a receiver. But this seems very artificial reasoning, and could not apply to the original entry in the day-book, which was made before payment'; and even in the ledger the payment was alleged to have been made six months after the service. So that in truth, at the time of the entry, it was not against the party’s interest. And Mr. Justice Le Blanc, in the same case, after observing that he did not mean to give any opinion as to the mere declarations or entries of a midwife who is dead, respecting the time of a person’s birth, being made in a matter peculiarly within the knowledge of such a person, as it was not necessary then to determine that question, significantly said, ‘ I would not be bound, at present, to say that they are not evidence.’ ” The book in the Earl of Torrington’s case was admitted, upon the ground that the deceased drayman had no interest to misrepresent. This was not strictly correct. His declaration of having delivered the goods was an admission that he had received them for that purpose, and would have been evidence against him in an action for not delivering them according to his instructions. 1 Phil. Ev¡ 210 (3d Am. ed.). ' In Leland v. Cameron, 31 N. Y. 115, the entry by an attorney in his register, in the proceedings in the action, of the issuing of an execution which could not be found, was held, the attorney being dead, to be competent evidence of the fact that the execution was issued. In Livingston v. Arnoux, 56 N. Y. 507, the. giving of a receipt by a sheriff acknowledging payment on redemption of property sold on -execution, was held within the scope of his authority and duty, and the receipt, after the death of the parties concerned in the transaction, competent prima facie evidence of the fact and of the time of payment. “ Entries made by third persons in the usual course of professional employment contemporaneously with the transaction recorded, are admissible to prove the fact stated, after the death of the person by whom the entry was made. ('Patteshall v, Turford, 3 B. & Ad. 890; Brewster v. Boane, 2 Hill 537.) The entry by an attorney in his register of- *357 the making of an order or decree in a proceeding conducted by him, is admissible within this rule. The order or decree is the act of the court, but it is procured upon the application of the attorney, and the fact of obtaining it is a part of the history of the proceeding, which properly and usually is inserted in the register. There is no absolute duty resting upon an attorney to make such an entry, but this is not essential: it is sufficient if the entry was the natural concomitant of the transaction to which it relates, and usually accompanies it. (1 Gr. Ev., s. 115; Leland v. Cameron, 31 N. Y. 115.) The facts and circumstances, proved independently of the entry, rendered it probable that an order of confirmation was made, and in connection therewith the original entry of the corporation counsel was, after his death, admissible secondary evidence of the fact.” Fisher v. New York, 67 N. Y. 73, 77. The rule which governs the admissibility of entries made by private parties in the ordinary course of their business, with some exceptions, “requires, for the admissibility of the entries, not merely that they shall be contemporaneous with the facts to which they relate, but shall be made by parties having personal knowledge of the facts, and be corroborated by their testimony, if living and accessible, or by proof of their handwriting, if dead, or insane, or beyond the reach of the process or commission of the court. The testimony of living witnesses personally cognizant of the facts of which they speak, given under the sanction of an oath in open court, where they may be subjected to cross examination, affords the greatest security for truth. Their declarations, verbal or written, must, however, sometimes be admitted when they themselves cannot be called, in order to prevent a failure of justice. The admissibility of the declarations is in such cases limited by the necessity upon which it is founded.” Chaffee v. United States, 18 Wall. 516, 541. “ Entries made at the time acts took place, by one whose duty it was to keep a record of such acts, or by the tradesman -whose habit it was, in the course of his business dealings, to preserve a minute of them himself, ought equally to be received as evidence of those acts. The mere fact that the accounts in the latter case may be to the interest of the party making them should not of itself cause their rejection. In the former case, it is uniformly urged in support of- the admissibility of the book of items,, that it will be presumed that he who was in duty bound to keep a faithful transcript of events has performed his duty. The presumption, drawn from honesty of purpose, appears to be just as strong in the latter case where the merchant writes up his own books of debts and credits, and at least should not be overthrown by the mere appearance of a balance in his favor.” 15 Am. Dec. 192, note and cases cited. The person who made the entry, if he is alive, and a competent witness, and within the jurisdiction, is called to verify his writing. “ If dead, or beyond reach, or incom *358 petent, his testimony is dispensed with ex necessitate.” Bartholomew v. Farwell, 41 Conn. 107, 109; New Haven & Northampton Co. v. Goodwin, 42 Conn. 230, 231. The author of the notes on Higham v. Ridgway, 2 Sm. Lead. Cas. 271, 286, 287 (3d Am. ed.), says, — “Perhaps the true principle decided in Higham v. Ridgway, and recognized in these cases, is, that entries in the regular course of the person’s private business, and against his interest, are evidence after his death, — the principle of Patteshall v. Turford being confined to entries made in the course of official duty. But-the American cases appear to have melted these two into one, and to have settled, the very reasonable and useful rule, that all entries made in the regular course of business, private or public, are admissible though not against interest. And though the circumstance that an entry' in the regular course of business is against interest will undoubtedly add to its credibility, yet it cannot be considered as settled, in our law that the’ mere circumstance of an entry or declaration being against a. person’s interest renders it evidence of the fact between third persons after his death.” There is a distinction between entries made in the usual and -regular course of business, and a private memorandum. The latter is mere hearsay, and inadmissible in evidence after the death of the person who made it. Entries made in the regular and usual course of business stand differently. When shop-books are kept and the entries are made contemporaneously with the delivery of goods or the performance of labor by a person whose duty it was to make them, they are admissible, unless the nature of the subject is such as to render better evidence attainable. Mr. Greenleaf says the remark that this evidence is admitted contrary to the rules of the common law is incorrect; that “in general its admission will be found in perfect harmony with those rules, the entry being admitted only when it was evidently contemporaneous with the fact and part of the res gestae.” 1 Gr. Ev., ss. 117, 118. Declarations of deceased persons as to the boundaries of their land, though not made upon the land, are admissible on an issue between parties not privy in estate to them, if the declarants had means of knowledge as to the boundaries and no apparent interest to misrepresent. The fact that the declarations were in their favor does not render them inadmissible. “ The objection goes to the weight of the evidence merely, inasmuch as under the statutory changes in the law of evidence, by which all persons interested, and all parties, even, have become competent witnesses, there is no longer occasion to exclude the declarations of deceased real estate owners as to their boundaries, upon the assumption of Shepherd v. Thompson, 4 N. H. 213, 215, and other like cases, that it must be presumed to have been their interest to extend their boundaries.” Lawrence v. Tennant, 64 N. H. 532, 541. The evidence furnished by Woodward’s book was,cumulative. It *359 was shown by other evidence that he repaired the wood-work of the wheel, and afterwards died. Hosmer, the blacksmith, testified that several spokes were broken, the tire badly crippled, and the axle-tree sprung, and from appearances he should say the injury was caused by a blow. The book was received, not to show that Woodward repaired the wheel, but to show the character or extent of the injury to it. If ho were alive, his testimony that he put in sixteen new spokes at an expense of $3.20 would have been admissible. Being dead, his book of accounts, like other secondary evidence, is admissible. Whether the entry is competent to prove that Woodward repaired the wheel is not a question in the case. That fact appears by evidence aliunde, and the entry bears date on the day the injury took place. Although the entry appears in the form of a charge to Benton of sixteen spokes, there is no evidence whatever, aside from the entry, that tends to show the transaction was merely a sale of spokes, or that they were used in any other wheel. Upon all the evidence shown, and in the absence of any evidence to the contrary, the only conclusion the jury could reach was, that the spokes were used in the repair of the wheel that was broken when the plaintiff. was injured. If book entries made by deceased persons in the regular course of business are admissible to show identity (State v. Phair), dates (Augusta v. Windsor and Higham v. Ridgway), the surrender of an estate ( Warren v. Greenville), in an action against a surety that his principal had received money (Middleton v. Melton), the delivery of goods (Price v. Torrington), the service of a notice to quit (Patteshall v. Turford), notice to an endorser (Nicholls v. Webb), and that a deed was a forgery (Nourse v. M’Cay), we think the entry on Woodward’s book of accounts, made in the usual course of his business, and which it was his duty to make, was admissible, he being dead, to show the character and extent of the injury to the wheel, which tended to show that the wheel was broken by a collision. We cannot see that it makes any difference, as regards the question of the admissibility of the evidence, whether the purpose was to show the date when the injury occurred, or to identify the wheel, or to show the extent of the injury. Our conclusion is, that there was no error in the ruling admitting the book. The instructions requested were properly denied. State v. Boston & Maine Railroad, 58 N. H. 408. Exceptions overruled. Bingham, J., did not sit: Carpenter, J., dissented on the competency of the shop-book: the others concurred in the opinion.