Rhoads v. Gaul

The opinion of the court was delivered by Gibson, C. J. A shop book is competent as a registry of the sales made in the course of the business; and, in the nature of things, no true registry can be made of a fact that has not happened. If it were registered as having already happened, under a confident expectation that it would happen, the registry was false when it was made, and being false then, it is false still. The entries, therefore, ought to be made at the delivery of the goods, or immediately afterwards; and this is what is meant in Curren v. Crawford, 4 Serg. & Rawle, 3, by saying they ought to be made at or near the time. It is an undisputed part of the present case, that the charges were made when the goods were ordered and before they were sent, so that the entries are clearly incompetent standing by themselves: and what supplemental or independent fact is there to prove the delivery, which is as indispensable to charge the customer as the sale itself? It is that an arbitrary mark or sign was separately affixed to the entry of each article; not, however to charge the defendant, but to inform the porter so as to prevent a second delivery. According to Rogers v. Old, 5 Serg. & Rawle, 404, in which an entry not purporting on its face to charge the party was held to be inadmissible, the purpose of the marks is conclusive of their incompetency; for it must be indifferent whether there be no apparent intent to charge at al), or an apparent intent rebutted by the evidence adduced to explain and support it. Independent of this, it is decisive that the marks were not always made by the hand that made the charge: and that no witness proves them to have been made in this instance, by the plaintiff [408] or a clerk in his employment. If, then, we treat the marks as the substantive evidence of delivery, dismissing all beside, except so far as it serves to explain the meaning of the marks, we look in vain for proof of their authenticity. In questions of this sort, it is necessary to show, not only the originality of the book, but the genuineness of the writing, in order to raise a presumption that the transaction was in the usual course of the business. Such is the principle of Sterrett v. Bull, 1 Binn. 234, by which it was'determined that entries in the hand-writing of a clerk must be verified by his oath, or proof be made that he is dead or out of the jurisdiction. What we have here as evidence of delivery is a set of arbitrary signs, intelligible but to those who were in the service of the plaintiff, and unsupported by the oath of him who made them; consequently they ought not to have gone to the jury. Judgment reversed and a venire de novo awarded.