Murphy v. Cress

The opinion of the court Was delivered by Hustojt, J. This suit was biought by CreSS to recover the price of wood, alleged to be sold to F. Murphy, the defendant below. Murphy admitted that he had received some wood, and produced receipts, five in number, for the payment of different sums, amounting to $134—the first dated the 12th of October’, 1832, and the last the 21st of September, 1833; which he alleged was in full of all the wood he had got from plaintiff. As to the rest of the plaintiff’s demand, he alleged that the wood was not Sold or delivered to him, but to A. G. Murphy and Jesse Miller, who kept a wood yard and did business under a firm of Murphy and Miller. As to the evidence on this point of the case, and the directions of the court to the jury, We do not see any error. The question at length turned on the credit of the witnesses, as to whether Francis Murphy was a partner in that firm of Murphy and Miller; but if he was, his receipts for $134, would have reduced the plaintiff’s demand so much. To do away the effect of these receipts, the plaintiff below offered as rebutting evidence, another part of his book, in which was an entry as follows. “ 1832—F. Murphy, Dr. Wood delivered to sell on commission. Sept. 21—Delivered 8J cords hickory. Oct. 12— “ 9 “ “ .” This entry-was formally crossed; it was objected to, but admitted and a bill of exception taken. In Poultney v. Ross, (1 Dall. 239,) Shipped, J., says, “ Though in England the shop book of a tradesman is not evidence of a debt, without the oath of a clerk who made the entry, yet here, from the necessity of the case, as business is often carried on by the principal, and many of our tradesmen do not keep clerks, the book proved by the oath of the principal, has always been admitted. And such [36] book is prima f acie evidence of the price as well as of the sale and delivery of goods.” (1 Yeates, 347.) But the book is only evidence of sale and delivery to the person who got the goods, and not of any collateral matter—as that another person promised to pay for them, or was bail for the pay; (1 Dall. 238-9.) And in every case where a day book has been offered to prove any collateral matter, it h'as not be'en received. In 1 Yeates, 198, we have the case of a defendant who admitted the having received the goods sued for, but produced his own book in which he stated that the goods were received to be sold on commission, and.charged-himself with the price of such as were sold; but Yeates and Bradford, Js., rejected the evidence, saying it was not within the reason or necessity under which such books have been admitted in evidence in our courts; and that an agency or trust must be proved by other testimony than the party’s own hand-writing. We do not consider it material in what stage of the cause or for what purpose it was offered. The fact, if it were so, that the plaintiff had delivered wood to the defendant to sell on commission, must be proved by some other evidence than the plaintiff’s own books. To admit it, would be going further than any case has gone, and for this the judgment is reversed. * It has been said here, that the objection taken in the District Court, was because it was offered as rebutting evidence, and that the ground now taken was not there mentioned. If so, we can’t help it. The record shows no such matter; and we must go by that. I am aware, that more care by the counsel and court below, in making up the record, would be more satisfactory to the judges of both courts. Judgment reversed, and venire de novo.