Shields v. Carter

Jenkins, J. (After stating the foregoing facts.) Some elaboration of the third headnote seems appropriate. Under the law as it originally obtained, a party was not permitted to prove his account by his own testimony, and for this reason it was necessary for him to show by the clerk who actually furnished the articles that the charge was a proper one. From the necessity of the case it was therefore held, in early decisions of the Supreme Court, that under certain conditions accounts of merchants and shopkeepers might be proved by the introduction of their books, provided it was shown that no clerk was kept, or that for any reason he could not testify. These rulings afterwards became embodied in the code, and by legislative enactment were extended so as to apply not only to merchants and shopkeepers, but also to physicians and blacksmiths, and finally to farmers, dairymen, and planters, and all other persons doing a regular business and keeping daily entries thereof. After the change in the law,' whereby parties themselves became competent witnesses, these provisions of the code, although in effect a departure from the general rule against the admission of declarations of a party in his own interest, were nevertheless retained. It was stated by Judge Bleckley in Petit v. Teal, 57 Ga. 145, 148, that while this change in the law might have a bearing upon the subject, since the necessity for the rule had abated in force, it was nevertheless his opinion that even though "the party himself had been made competent to testify, the book should still be admissible as tending to support his credit. See also Reviere v. Powell, 61 Ga. 30, 32 (34 Am. R. 94). Since, however, as already stated, the provision of law permitting the proof of accounts by such books of entry still remains embodied in the law of the code (Civil Code of 1910, § 5769), it would seem that where no clerk is kept, or where for any reason the clerk is unable to testify, such books are still admissible, not only for the purpose of corroborating the testimony of the party, but also in order to actually prove the account,, where it can not otherwise be definitely established. Harper v. Hammond, 13 Ga. App. 238 (3), 240 (79 S. E. 44). It has been held by this court that even though no proof is made that no clerk was kept, or that he was unable to testify, such books are nevertheless admissible for the purpose of corroboration. Bush v. Fourcher, 3 Ga. App. 43 (59 S. E. 459); Tifton &c. Railway Co. v. Butler, 4 Ga. App. 191 (60 S. E. 1087); May v. McCarty, 11 [510] Ga. App. 454 (75 S. E. 672). In the case now before us no objection to the introduction of the defendants’ books is made upon the ground that no foundation therefor had been laid, and therefore w.e will only consider the ground of objection actually raised. Bond v. Watson, 20 Ga. 135; Cox v. Cody, 75 Ga. 175; Giles v. Vandiver, 91 Ga. 192 (17 S. E. 115). The contention of the plaintiff is that the books of defendant were merely self-serving declarations made in his own interest, and were for that reason inadmissible. It is true, as already slated, that the admission of a party’s books of account in his own behalf is in any case a departure from the general rules of evidence. Harrold v. Smith, 107 Ga. 849, 851 (33 S. E. 640). Code section 5769, supra, provides that certain books of account, upon compliance with named conditions, are admissible as proof of accounts. Are such books likewise admissible on behalf of a defendant as tending to disprove a claim made by 'the opposite party ? In Petit y. Teal, supra, the books offered by defendant were held incompetent, but not for the reason that they were offered by the defendant in disproof of the .items of suit. They were held inadmissible upon the principle of another rule, to the effect that book entries are not competent to prove casual cash advances not made in the regular and usual course of the business involved, since in such a case it ought to be within the power of the party to furnish a higher form of testimony, such as a receipt taken or a note given. See 10 R. C. L. 1187, § 384. This rule was also recognized in Ilarrold Y. Smith, supra, but there the books offered by the defendant were rejected for the'reason that they appeared to be mutilated. In neither of these cases is there any intimation by the court that had these books been properly kept and had they pertained to items'of competent subject-matter, they would have been inadmissible on behalf of the defendant keeping them, under the general rules of evidence. See also Gandhl v. Shore, 24 Ga. 17. In our opinion, entries made in the regular and usual course of business, and which it was the custom and duty of the enterer in such manner to make, are ordinarily admissible as a circumstance on behalf of the defendant making them, for the purpose of corroborating his denial of the plaintiff’s claim. 5 Enc. Ev. 263 (7). It has been sometimes stated that-books of account are admissible only as affirmative evidence, and not for the purpose of establishing a negative [511] proposition. 10 R. C. L. 1187, § 383; 52 L. R. A. 689, note X, appended to the decision in Hall v. Chambersburg Woolen Co., 187 Pa. 18 (40 Atl. 986, 67 Am. St. R. 563). In the instant case no objection is made to their admission on this ground. Moreover, there are numerous decisions.to the effect that where in the regular course of business certain entries should appear upon an appropriate record, if certain transactions were had, the production of such record showing the omission of such entries is some evidence to be taken as a circumstance tending to support the credibility of positive testimony which negatives the actuality of such transactions. 5 Enc. Ev. 267 (10). Judgment, affirmed. Wade, G. J., and Luke, J., concur.