Administrator of Burnham v. Adams

The opinion of the Court wets delivered by Baylies, J. This was an action of assumpsit on note for $225. The defendant stated his defence to be, “ that at the time the note was executed, to wit, September Ibíh, 1823, it was agreed between the parties, (the intestate and. defendant) that an account, which the defend’t had against, the intestate for goods sold to him out of the defendant’s «tore, should be applied in payment of the note, and also such goods as the intestate should afterwards take up out of said store, should be applied thereon, at the cash price f and that the intestate had taken goods out of the store to an amount more than sufficient to pay the note, which were regularly charged on the books of the said Adams.” The case shows, “ that the defendant gave evidence tending to prove the aforesaid agreement, and also the sale and delivery of various articles from said store, both before and after the execution of the note, as well as the payment of several sums of money.” After this, “ the defendant offered in evidence his books of account containing the charges and account against the intestate, both before and after the execution of the note, accompanied with evidence that they were the cooks kept in his store during the time the several charges were made, and that they were correctly kept, in order to show the amount of the sales by the defendant, Adams, to the intestate. The plaintiff objected to the admission of the books in evidence, and the Court excluded them.” And the question is, Did the Court err in excluding the books ? In several of the States, it has been decided, that books containing accounts, are admissible as evidence to the jury to support a declaration for goods sold and delivered, on the party who owns the books, making oath, that the entries are true. — See 1 Dallas, 85, 239, 276.-2 Mass. Rep. 217, 569.-4 Mass. Rep. 455. — 13 Mass. Rep. 427. This is certainly a departure from the common law. In this State, we have not adopted this rule; but here the party may make oath to the truth of the entries on his book before auditors, in an action which he has brought on hook account according to our statute. But because he may bring an action on hook account, and make oath to the entries before auditors, the statute does not deprive him of [316] his common law remedy: he may still declare for goods sold and delivered, and give his book in evidence to the "jury, accompanied with such other evidence as the common law requires to prove his declaration. The common law requires, that the entries in the book should be proved by the clerk, or servant, who made them, if such clerk or servant be alive, and can be produced. — 1 Esp. N. P. Rep. 1, 328. But it has been settled ever since the decision irr Lord Torrington’s case, that if the entries were made by a clerk, or servant, who is-*since dead, the books are admissible as evidence on proving the entries to be in the handwriting of such clerk or servant 5 and also proving his death. — Salk. 285 and 690. In the case at bar, d do not understand that the defendant offered any thing but common law proof, when he offered his books, and evidence to show that the entries were correctly made against ihc intestate. This proof was necessary to enable the jury to ascertain how much had been paid on the note, according to the agreement of the parties, and should have been admitted by the Court. R. C. Royce, for plaintiff. Jonoj Clark, for defendant. if the intestate, when the note was given, agreed that the defendant’s account against him on book should be payment on the note, this agreement seemed to make the book containing the account, necessary evidence to be submitted to the jury, to enable them to ascertain the amount of the account at that time. So the books were necessary evidence to ascertain the amount of goods subsequently delivered by the defendant to the intestate, and charged on book, if it was agreed that such goods should be payment on said note. If there was a dispute about any of the entries made on book, either before or after the giving of the note, such dispute should be settled by the jury on view of the books, and other common law evidence, relatingto such entries. On the whole, I am satisfied that the books, and evidence to show that, they were the defendant’s, and that the charges were correctly made, should have gone to the jury for them to weigh ; and inasmuch as the Court excluded this evidonce, their judgement is reversed, an da new trial granted.