Miller v. Shay

Morton, O. J. The small account-book kept by the plaintiff, showing the number of loads of sand delivered, was properly admitted in evidence. It was a rough and imperfect book of accounts, but it was honestly kept, and was the record of the daily business of the plaintiff, made for the purpose of establishing a charge against another. Pratt v. White, 132 Mass. 477. Such a book, supported by the oath of the plaintiff, is competent, though the account was kept only by marks, the plaintiff being unable to write. These entries are intelligible, and no more liable to fabrication than other entries. It is a book of original entries, though the marks were transferred from marks made on the cart by the servants of the plaintiff who delivered the sand. Smith v. Sanford, 12 Pick. 139. Kent v. Garvin, 1 Gray, 148. Harwood v. Mulry, 8 Gray, 250. [164] Where goods are delivered by a servant, and his entries or marks are transferred to the master’s account-book, it has been held that the servant must be a witness to support the charges and to prove the delivery. Kent v. Garvin, ubi supra. In the case before us, therefore, the testimony of Joseph Pratt was competent and necessary. If there was doubt whether the plaintiff’s book ought to have gone to the jury, there is another ground upon which the defendant’s exceptions should be overruled. In a transaction like that involved in this case, it is not to be expected that any memory unaided could retain accurately the number of loads of sand delivered. The plaintiff had clearly the right to use his account-book as a memorandum to refresh and aid his memory. The fact that the book went to the jury could not prejudice the defendant. The only possible use the jury could make of it would be to count the marks, and see if the plaintiff had stated their number correctly. The exceptions show that the plaintiff’s count was correct, and it is of no consequence to the defendant whether the jury took this number from the plaintiff’s testimony or from a count of the marks. A new trial would not be granted because of the admission of incompetent testimony which is entirely immaterial. Exceptions overruled.