Fairchild v. Dennison

The opinion of the Court was delivered by Kennedy, J. —'The first error is, that the court erred in permitting the plaintiff to amend his,declaration by filing the statement: and the second error is, that the court erred in permitting the plaintiff to state new and distinct causes of action, after an award of arbitrators against him. Now it is obvious that if the first error can be sustained at all, it must be on the ground that the second error is true, which makes it proper to consider them together as one. By the act of 1806, it is made the duty'of the court, either on or before the trial of a cause, to permit an amendment of any informality to be made in the declaration or statement of the plaintiff, or plea of the defendant, when in their opinion such informality would affect the merits of the cause in controversy. The act in this respect is imperative; and it would be error in the court to refuse such permission in any case, when asked for, whether it be after an appeal from the award of arbitrators or not; for no clause or part of the act seems to make any distinction on this account. The third count in the declaration being an insimul computasset, as filed first, was no doubt intended to embrace all previous dealings and accounts between the parties; and it may be, that when it was drawn, it was thought the evidence would be such as to authorize the introduction of it, and that the whole of the plaintiff’s claim might be established under it; but it may have been that, for some cause or other, the plaintiff was deprived of that evidence. For instance, a statement of the whole of the plaintiff’s claim against the defendant might have been made out in writing, in the form of an account stated long before the commencement of the suit, and delivered by the plaintiff to the defendant, who received and retained it without ever having made any objection to it. If such were the fact, evidence of it would have been admissible under the third count, and have gone to have supported the whole claim of' the plaintiff. But then it may have happened, that the only witness by whom he could have made such proof at tíre time of filing the declaration, died before the trial of the cause, and thus have made it necessary, in the opinion of the [260] counsel who afterwards tried the cause, to obtain the amendment. But if (lie promissory note, specified in the statement which the plaintiff filed as the amendment to his declaration, be genuine and admitted, or capable of being proved t.o be so, it is more probable that the third count was designed to meet it,: and I am at a loss to discover why it was that the amendment was deemed necessary to enable the plaintiff to recover all'he got a verdict for; because he might have recovered under the third count to the full amount of that, note, besides interest thereon fiom the time it became payable, which would have been near 97 dollars instead of 30. Story v. Atkins, 2 Stran. 719; Bull. N. P. 136, 137; Chilly on Bills 366; Clayton v. Gosling, 5 B. & C. 360; Highmore v. Primrose, 5 M. & S. 65; 2 Saund. 122, note 3. That this note would have been admissible under the third count as evidence of a balance due, on settlement between the parties, from the defendant to (lie plaintiff, is established by the foregoing authorities beyond a doubt; and the plaintiff after having given it in evidence, could afterwards, when the defendant had given evidence of his claim against the plaintiff by way of set-off, have rebutted the defendant’s set-off, by giving evidence, so far as he had it, of the items contained in his account. It does not, then, distinctly appear to us, that by the amendment any new and different “cause of controversy” (which are the words of the act) was introduced, and therefore we cannot say that the court erred in allowing the amendment. The third error, which is the only remaining one, is, that the court erred in admitting the book and memorandum in evidence, as set forth in the bill of exception. The plaintiff, on the trial of the cause, produced the book and memorandum here mentioned, and after being sworn to make true answers, testified that the book was a book of original entries of medicines sold; that the account therein charged to the defendant was copied in part from the memorandum; that he had no ledger to which the book was posted; that he had another book in which he made charges for his professional services and kept his general accounts. The memorandum was admitted by the defendant to be in his handwriting. The counsel for the plaintiff then offered to read the memorandum and the entries charged from it in the book against the defendant, in evidence to the jury, to which the counsel for the defendant objected; but the court overruled the objection, and admitted both to be read in evidence, to which the defendant’s counsel excepted. It appears to me that the court erred in admitting this evidence; for it is evident, according to the plaintiff’s own showing, that the entries in the book, said to be transferred from the memorandum, were not such original entries as the law makes admissible upon the oath of the party. When compared with the memorandum, they are only in part a transcript of it. The memorandum on its face does not purport to be an account or bill of articles or goods sold and delivered, but barely an inventory of the articles therein mentioned, with the value [261] affixed to each article. They are not slated to have been bought of any one ; nor is any person charged as a debtor for or on account of them. In short, the name of no person whatever, appears on the memorandum ; so that from it, it is utterly impossible to pronounce it even an account of the sales of the articles therein specified, and certainly still less an account of a sale and delivery of them fiom the plaintiff to the defendant. And that it was neverintended to be such, is shown by a comparison of it with the entries made by the plaintiff in his book, for he has only charged some of the items, omitting the residue ; and why not have charged the whole if the memorandum was made out for that purpose'? It is manifest, then, that the memorandum itself, although admitted by the defendant to be in his handwriting, was no evidence to charge him with the prices of the things therein mentioned to the plaintiff. And as the plaintiff testified that he made the memorandum the ground or basis for charging the articles therein specified in his book, the book could certainly be no better evidence, nor as good even as the memorandum. It is clear, then, that, the entries, not being made in the book as a registry of a sale and delivery actually made of the things therein mentioned, at the time of their being so entered, were not admissible evidence, and (he court therefore erred in receiving them. Judgment reversed, and a venire de novo awarded.