Whiting v. Corwin

The opinion of the Court was pronounced by Hutchinson, C. J. The auditor’s report of facts settled the point, that these items of the plaintiff’s account, now in controversy, were not included in, or settled by, the settlement entered on the plaintiff’s book, in June 1831.— That they were not then charged on the book ; that the error of twice crediting the same item on said book was not then corrected; that the other two items of the plaintiff’s account were then spoken of by him as unsettled matins; and that the plaintiff then refused to pass receipts, on account of these matters that remained unsettled. From the facts, reported by the auditor, the plaintiff has a just claim, for which he ought to find some remedy. He finds that the oats were sold, by plaintiff’s clerk to the defendant, in April, before the June settlement, but were not charged till the July following; that the ‡15 in money was delivered for the defendant to purchase articles for the plaintiff, which he never purchased, but converted the money to his own use; that the item was twice credited on book, as is now contended by the plaintiff, and [456] thiserror not corrected on said settlement. And he finds all this from indifferent testimony, without the oath of ~the plaintiff. All this surely entitles him to redress, un-dess he has mistaken his remedyl Upon this point, we will notice the items separately.— The charge for 16 bushels of oats is clearly a proper article of book charge, and there is no dispute but that the price is correctly allowed. It is contended, that the charge of the money is in substance a charge of the defendant’s embezzling so much money. We may do well to examine whether this be so.— For, surely, we ought to decide upon such items according to their reality, and not merely according to some shape, in which they may be presented. The actual circumstances of this money charge were, that the plaintiff delivered this sum of $15 to the defendant in trust for him to expend in a particular way, for the benefit of the plaintiff. The defendant accepted the money upon this trust. Had he expended the money according to this trust, showing that, even upon his own oath, would have been good accounting for the money; and all which the plaintiff had a right to claim of him. But he did not expend the money according to that trust; and he does not attempt to account for it in that way.'; But he must account for it in some way; and none is more proper than the one now pursued, where there is no difficulty about the proof, and none now exists. The plaintiff’s claim for the money was complete, as soon as the defendant having received it, neglected or refused to use it for the benefit of the plaintiff, according to his trust. What afterwards became of it, whether the defendant used it for his own benefit, or destroyed it, cannot affect this action. With regard to the charge to correct tfie error of crediting one article twice, all the difficulty is technical, arising from the shape in which the claim is presented. The article thus credited twice is not named. Suppose it in reality to be six bushels of grain. The book being balanced with this credit twice, would virtually make the defendant debtor for six bushels of grain. Let the charge, then be made thus, “To six bushels of grain, credit by mistake,” and' it would seem natural enough as a book [457] chaige. It is most favorable to the defendant to have it allowed here rather than in a separate action. Proper articles of book charge, can be recovered in this form of action, if in any form. If there is a settlement, which includes them, they ought not to be, and cannot be, recovered in any form of action. If they appear, prima facie, to be included in a settlement, when they were not, this embarrasses the plaintiff’s proof, but does not change his remedy. We were governed by this doctrine in a case this winter in Franklin County; and we consider it a reasonable doctrine. Any other action may be of no use to the plaintiff, for want of proof to establish the delivery of the articles. If a question arises, how far the oath of the party may avail in such a case ? The answer is at hand. Pie may swear to the delivery of the articles the same as in all other cases;' and is as much entitled to credit, as he would be in any other case of his testifying to support his own account. If he is cross examined with regard to any settlement, which might include this account, he must answer truly ; and exhibit what light he can from his books, and from any witness made at the time of the settlement spoken of. But it is not a matter of course, that the party is to gain full credit as an indifferent witness. His testimony must be weighed in connexion with whatever testimony is derived from the books, and from other witnesses, tending to oppose, or strengthen his testimony.— But the testimony of the party to his charges, delivered in the usual course of his deal, and charged at the time of delivery, in his usual way of charging on book, is generally considered sufficient proof of such charges, unless there is some evidence, tending to render his claim doubtful.— The case at bar is freed from all difficulty upon this head; for it does not appeal’, that the plaintiff offered himself as a witness, at all; and it does appear, that all the facts were proved by other testimony. The County Court, in deciding upon tho special report of the auditor, allowed the plaintiff to recover for the three contested items; and that Judgement is affirmed.