Livingston v. Tyler

Church, J. 1. To lay the foundation for the admission in evidence of the original book kept by the defendants’ deceased clerk, Harrison, it was claimed, or admitted, that all the bark taken under the contract in question, by the defendants, was carried to their tannery; that Harrison was employed as clerk by the defendants, with directions, and whose duty it was, to receive the bark, and keep an account of its receipt; that it had been his constant practice to make entries of the loads of bark, as they were received by him, at the defendants’ tannery; that the book offered in evidence consisted of Harrison’s original entries made as aforesaid ; that the plaintiff kept no account whatever ; nor had he suggested any other course to ascertain the quantity of bark taken under the contract, than the one adopted by the defendants. It must be [499] presumed, that both parties intended that an account should be kept, by somebody ; and as the plaintiff kept none, and-suggested no other course, we must suppose he acquiesced in the one pursued by the defendants, especially, as this was a reasonable one, and business-like. Under such a state of facts, it is not a forced construction of the matter, to say, that Harrison was the agent of both parties in keeping the account, although employed by one only; as much so, at least, as the clerk of a bank, or a merchant’s clerk, may be so considered, in keeping accounts of transactions in which his principals and their customers are equally interested. In this view, we perceive no reasonable objection to the admission of the book so kept, as evidence conducing to prove, not only that the quantity of bark entered was received, but also that the whole which was received at the tannery, was entered upon the book. The foundation of the principle is, that the book contained a true account ; and if so, it shewed the exact quantity received. The principles upon which private, original entries, made by third persons, have been received as evidence affecting the rights of others, have not always been clearly stated, if clearly perceived. They have been received, because they have been supposed to furnish some evidence against the person making them. Webb v. Greenville, 2 Stra. 1129. Barry v. Bebbington, 4 Term Rep. 515. 669. Roe d. Brune v. Rawlings, 7 East, 279. Higham v. Ridgeway, 10 East, 109. Doe d. Reece v. Robson, 15 East, 32. Peaceable d. Uncle v. Watson, 4 Taun. 16. Goss v. Watlington, 3 Brod. & Bing. 132. Marks & al. v. Lahee, 3 Bing. N. Ca. 408. Pool v. Bridges, 4 Pick. 378. They have been received in proof of pedigree. Rose. Ev. 20. They have been received when made in the usual course of business, by a person now incapable of giving testimony, who had knowledge of the fact, and who had no motive to misrepresent it; and more especially, when made with the presumed assent of the person to be charged with them. Within this principle, the question now considered, very distinctly falls. Price v. Lord Torrington, 1 Salk. 255. S. C. 2 Ld. Ray. 873. Pitman v. Maddox, 1 Ld. Ray. 732. Bul. N. P. 282. Pritt v. Fairclough, 3 Campb. 305. Fagedon v. [500] Reid, Id. 379. 1 Stark. Ev. 319. Champneys v. Peck, 1 Stark. Ca. 404. Furness v. Cope, 5 Bing. 114. Merrill v. Ithaca and Owego Railroad Company, 16 Wend. 586. Lewis v. Norton, 1 Wash. 76. Welsh v. Barrett, 15 Mass. Rep. 380. Union Bank v. Knapp, 8 Pick. 96. Brewster v. Doane & al., 2 Hill, 537. 2. The covenant, in this indenture, upon which this action is chiefly founded, is that one wherein the defendants agreed, that they would allow and pay to the plaintiff for not less than eight hundred cords of bark annually, to be taken by them from the leased premises. The plaintiff, at the trial, claimed, that the defendants were responsible for that quantity, at least; if it was physically possible for so much to be obtained from the land. The defendants claimed, that they had used all reasonable and practicable means to procure bark, and according to the well known usage and practice of those engaged in similar business, in that part of the country where the timber was growing; and that they had not procured, and, by such efforts, could not procure, eight hundred cords annually ; and they insisted, that, under such circumstances, they were liable for no more than they had thus obtained; and so the court charged the jury. This instruction was right. This covenant is to receive either a literal or practical construction. There is no middle course. If a literal construction is given to it, we must suppose the defendants were obliged to take the bark of the pine tree, as well as the hemlock — the hickory, as well as the oak. No distinction is made in the agreement; but because such bark as the pine and hickory is not used for tanning, or other practical purposes, we cannot suppose the parties had such in contemplation. And so, if this covenant is to be literally construed, the defendants should have taken the bark from every bough, great or small; but considering the covenant secundum suhjectam materiam, and as practical men would consider it, we cannot consider this was necessary. The defendants were bound to pursue a reasonable and prudent course in fulfilment of their contract, having reference to the situation of the timber, the purposes and use for which the bark was intended, and the general usage of persons employed [501] in such business in that region. In conformity with this view’, the jury were instructed ; and therefore, we do not advise a new trial. In this opinion the other Judges concurred. New trial not to be granted