Terill v. Beecher

Daggett, J. The question is, whether the account exhibited by the plaintiff, be a foundation for a recovery in the action of debt by book. This action is given and regulated by our statute. Tit. 9-p. 93. It is sjaid to have been co-eval with the government. See note to sect. 1. p. 93. (a) Evidence of the parties and other persons interested, is admitted contrary to the rules of the common law. Hence, it ought not to be extended beyond the necessity which gave birth to it. In the daily intercourse of merchants, mechanics, farmers, &c. articles are sold and delivered, without any written or other proof, except that which can arise from the oaths of the parties. To prevent a [357] j( failurb of justice, this peculiar action has been introduced and ‡ tolerated. Hence results the propriety of restricting it to its 4 original objects. It has been, in many instances, limited. It IS has not been extended so as to embrace property loaned, and Inot returned; nor to compensation for injuries of any kind; nor to recover money paid on a note, which had not been applied, i This was so ruled in Bradley v. Goodyear, 1 Day, 104., though 4 there had been several decisions to that effect, prior to that ■period. For similar reasons, it ought not to be extended to ⅜|money or other articles, delivered in fulfilment of any construct. It was further declared, by this court, in the case ⅛above cited, that no charge Qould be admitted on book, unless .(the right to charge existed at the time of the delivery of the «article, and arose in consequence of such delivery. These Ipositions, I think are sound, and ought to govern in actions of ¡¡debt by book, — and in this case. Ill The question, then, is, were these articles sold and delivered to the defendant, and he to be made debtor therefor 1 The I‘answer is on the bill of exceptions. They were delivered in fulfilment of the special agreement of the plaintiff, to pay the | defendant 25 dollars a year, &c. Again, did the right to i charge, arise in consequence of the delivery ? This must also : be answered in the negative. The right to charge, and to re-t cover, arose from the violation of the agreement of the defendant, to serve the plaintiff the stipulated term. I Moreover, it is very clear, that the controversy, in this Icasc, will be about the entering into, and violation of the special agreement. To this the oaths of the parties are not admissible. The oaths of the parties, regularly, go to the quantity, quality, and delivery of the article. Phonix v. Prindle, Kirb. 209. per Ellsworth, J. Parties are not unlimited wit-fnesses. They cannot testify on an issue, formed on a plea of I tender, or release, or accord and satisfaction, or a new promise to revive a debt barred by the statute of limitations. Weed & al. v. Bishop, 7 Conn. Rep. 128. Perhaps it is safe to affirm, that no action of debt by book, can be sustained, unless it be for articles, the sale and delivery of which may be proved I by the testimony of the parties. An application of that principle, will shew, that debt on book cannot be sustained, in this for the indebtedness, if any, grew out of the violation lease jof an agreement, on the part of the defendant. [358] I think, therefore, that there is nothing erroneous in the judgment complained of. Peters and Bissell, Js. were of the same opinion. Hosmer, Ch. J. and Williams, J. dissented. Judgment affirmed. Footnotes [(a)] That is, the form of action and the practice of admitting the parties as witnesses in the cause, have always prevailed. But the first statute re garding book debts was introduced, at the revision in 1672; and this was merely a statute of limitations. The first legislative provision,. authorising the admission of evidence from the parties, and other persons interested, ww enacted in May 1715. See the notes to tit. 25. p. 101,2. ed. 1808. R.