Kent v. Garvin

Bigelow, J. It has long been the settled law of this commonwealth, that it is not a valid objection to the competency of a party’s book, supported by his suppletory oath, that the entries therein were transcribed from a slate or memorandum-book in which they were first entered for a temporary purpose, although the entries on the slate or memorandum were made by a person other than the party who copied them on to the book. In such cases, the entry of the charges in the regular day-book of the party is deemed to be the first and original entry, and as such, competent proof, with the oath of the party, of the charges therein made. Faxon v. Hollis, 13 Mass. 427. Smith v. Sanford, 12 Pick. 139. Ball v. Gates, 12 Met. 491. Morris v. Briggs, 3 Cush. 342. But in all these cases it will be found, that in addition to the oath of the party who made the entries [150] in the day-book, the testimony of the person who made the entries on the slate or memorandum-book was adduced, to prove that articles were delivered or work ■ performed of a character similar to those charged* on the day-book, at or about the time of the entries therein. The charges in the book, supported by the oath of the party maldng the entries, are often the only evidence of dates, items and amounts, which individuals cannot well retain in their memories. The case at bar goes beyond any adjudged case in this commonwealth. The attempt is here made to put in evidence the book of a party, supported by the oath of his clerk who made the entries, for the purpose of proving the sale and delivery of articles made by a third person in the employment of the plaintiff, whose evidence is not produced in support of the charges, nor is any evidence offered from any source other than from the book, to show that at the time the charges were made, any articles, similar in character to those charged, were delivered by the plaintiff to the defendant. It is manifest that here an important link in the chain of evidence is wanting. The clerk who made the entries had no knowledge of the correctness of any charge on the book. All he can say is, that the drayman, who delivered the articles for the plaintiff, gave to him from his memorandum-book the items which were entered on the book The case therefore rests on the mere unsupported statement of a-third person, whose fidelity and accuracy there are no means of ascertaining and testing. It is in its nature mere hearsay testimony. To permit the books of a party to be competent proof under such circumstances, would be extending the rule applicable to this anomalous and dangerous species of evidence quite too far. The book in the present case is also liable to the further objection, that the entries were not made, in many instances, until six days after the date of the alleged delivery of the articles to the defendant. Of itself this objection would not perhaps be fatal to the competency of the book, but taken in connection with the absence of the testimony of the person who delivered the articles and made the original memorandum, it renders the [151] oook entirely inadmissible. Kessler v. M’Conachy, 1 Rawle 441. M’ Coy v. Lightner, 2 Watts, 350, 351. For these reasons we think that the court below erred in permitting the auditor’s report, founded on the charges in the book, to be read to the jury in support of the plaintiff’s claim. Exceptions sustained. A new trial was had in the court of common pleas at April term 1854, when the plaintiff introduced new evidence, independent of his books, and obtained a verdict.