Cummings & Manning v. Fullam

The opinion of the court was delivered by Bennett, J. It is objected by the defendant, that the auditors erred in permitting the plaintiffs to prove that sundry items of their account were charged in the hand writing of persons who were, at the times of the several charges, their clerks, and who were not produced, as witnesses, at the trial, though still living, for aught that appeared, but out of the state. This objection is unsound. In the book action, the books of the parties are evidence for or against them, according to their appearance and the regularity with which they are kept, and their freeness from alterations or erasures, and their weight with the triers must depend very considerably upon their manner of being kept. Our law has given the adverse party the right to claim the production of the original books. If it appeared, as in this case, that some of the items were not in the hand writing of the plaintiffs, it was a natural inquiry, who made such charges ? If the hand writing was not known, or if the entries appeared to have been made by a person who Was never known to have been in the employment of the party, it would detract from the [440] weight, which the triers might otherwise give to the books* It was, then, manifestly proper to permit the plaintiffs to s^ow who those persons were that made the charges ; that they were in the plaintiffs ’ employment, and that it was their appropriate business to deliver such property as is charged,and make the proper entries. This would serve to give character to the books, and necessarily tend to establish the plaintiffs ’ account. So far then as the books themselves are concerned, it must have been admissible, as having a bearing upon their character. Had this been an action in which the books of the party were not evidence, it would have been otherwise. It seems that the plaintiffs' dissolved their partnership in April, 1837, and that, between that time and the 7th of June, following, when the plaintiffs assigned to Daniel Perry, for the benefit of their creditors, not only this account against the defendant, but all other claims, Mr. Fullam defended certain suits brought against the plaintiffs, and charged his fees to the firm. The auditors find that Manning was opposed to making any defence to those suits, and refused to employ counsel to defend them, and that the defendant was employed by Cummings, individually, though it does not appear that the defendant had any notice of the determination of Manning in this respect. Under such a state of facts, it might be questionable, whether the defendant was entitled to have had such items in his account allowed against the firm. The county court, however, did allow them, and there is no exception to this, on the part of the plaintiffs. We cannot, therefore, revise the decision of the county court in this particular. We think the county court were right in disallowing all that portion of the defendant’s account which accrued after the assignment of the plaintiffs ’ claims to Perry. The auditors find that Fullam had notice of the assignment at the time it was made,and it has long been settled, in this state, that courts of law will protect the rights of the as-signee to a chose in action after notice. The assignment to Perry, being bona fide, is valid, though made in trust and for the benefit of the creditors of the assignors. The defendant, after such assignment and notice, cannot [441] offset his account accruing subsequently thereto. To permit it, would be to defeat the rights of the assignee, which we are bound to protect. The judgment of the county court is affirmed.