Bell v. McLeran

Hutchinson, C. J. delivered the opinion of the Court.— There is no dispute -about the defendant’s indebtedness to the plaintiff; but merely, whether the debt can be recovered in this action on book account. It is urged, that a book of accounts is indispensable to a recovery in.this form of action ; and none was produced by the plaintiff to support his claim before the auditors. This calls upon the Court to restrain the evidence, in book account actions, to narrower limits than has been done heretofore. It has generally been considered, that a man may recover, in this form of action, with no other book than one made up in court, provided he can satisfy the auditors, by sufficient common law proof, that the articles char [188] ged were sold and delivered, or the labor done ; and in any way, by his own oath, or that of the other party, show that the same are yet due, or remain proper items of an account for settlement. Indeed, the practice has been, to administer the oath to the party in all cases; atid learn from him, whether he has a book, in which he keeps accounts; and whether these articles were there charged,and whether done at the time ; and whether it was then understood, that these matters were tobe charged, or stand as an account against the other party. Yet it is expedient for every man to keep a regular book, ánd maintain a habit of charging in it every matter, when it accrues, that he ever intends to claim as an account. Then making oath to his book, that appears thus regular^ will usually support the account, unless impeached by other testimony} ánd in the same proportion, as his account and book deviate from this regularity, will the weight of his own testimony to his account be diminished. And, when no charge is made at or near the date of the transaction, the oath of the party charging needs other testimony to corroborate it before his account should be allowed. But, when the opposite party, under oath, admits the services, Or other charges, asm this case, that removes the difficulty. The law requires no particular form of book-keeping. But there should be something that pCrpetuate*s the memory of things as were understood at their date. But that mode, which makes the books most sure to show their own correctness, or furnish a criterion to correct any mistakes, that may happen, is best. Yet experience shows, that, among people, who have but a little to charge on book, each has his own method of charging ; and, when he makes charges at all, and makes them according to his usual custom, what is written must be termed his book, whether it be on the question of oyer, or on an enquiry for his original on trial. But the more liable to mistakes, his method may be, ánd the moré difficulty in detecting such mistakes, the more corroborating testimony he will need to support his account, it appears that the plaintiff’s custom is, to keep a book for his family to place in it the accounts, that concern domestic matters; but that he charges nothing there himself. That the accounts for his professional business ate never charged in this book. That those charges are usually made by him on slips of paper, and kept on file. That this account was for such professional business, and was so charged and kept, and that the account produced on trial was the original entry. This was sufficiently a book, to evade- any technical [189] "difficulty. All that remained related to the credit of the book and 'óf the plaintiff under oath; and that was put at rest by other testimony, especially by that of the defendant himself. Shaw & Co., for defendant Bell & Davis, for plaintiff. The judgement of the county court is affirmed.