Darling v. Hall

Phelps, J. The fact that a settlement had intervened, subsequent to the delivery of the corn, creates a presumption that the charge has been accounted for. Yet that presumption may be rebutted, and it seems in this case it [92] was so. There is nothing certainly in the nature of an adjustment of Rook Accounts, which operates to bar a claim not brought into the adjustment. If then the presumption of fact is removed, the claim remains unaffected by the settlement; and if the party have any remedy, it is difficult to conceive why he is not entitled to that which was originally the appropriate one. This is no more than the common case of an item omitted in posting, which is very properly carried to a new account. Where the account continues to run between the parties, as in this case, there seems to be no reason why an omitted item may not be adjusted in it. Had there been no further account between the parties, the case might per-» haps be different. The case of Austin vs. Berry, appears to us in point. — . The agreement in that case originated perhaps in a supposition, that without it, the settlement would bar every remedy. At all events the effect of that agreement would only be to save the right of the party, without reference to the remedy. Aside of that agreement the cases are parallel. The danger to be apprehended from relying on the party’s own oath, is no greater than what is every day experienced, in the great latitude already given to this species of testimony. The question whether it shall be removed rests with the Legislature, but under the existing law, tho only safeguard is in the caution and sagacity of triers. Judgment affirmed,