McCann v. Gould

Hall, J. . . . The court, against the defendant’s objection, permitted Mr. Bacon, a professional bookkeeper who had charge of the plaintiffs’ books at the time the notes in question were given, and who had examined them for the purpose of ascertaining the facts to which he testified—the books themselves having apparently been present in court—to state what balance was due Tlieron A. Gould upon the books at the time said note was indorsed; and to testify what at that time the interest of Tlieron A. Gould was, assuming he had one third of the profits and that the outstanding accounts upon the books on that date had been collected and the merchandise sold had been paid for. The evidence received was relevant. It tended to prove that the representations, which the plaintiffs conceded they had made, were true; and was admissible to rebut the proof of fraud offered by the defendant. The court was justified in allowing the facts to be proved by the testimony of the bookkeeper. Though the facts testified to could have been ascertained from the books of account, by computation, and as the result of many other facts, they were nowhere explicitly stated in the books. When the facts sought to be proved are of such a character, and the books or accounts are voluminous, so that the examination of each item during the trial would consume much time and it would be difficult for the jury to understand the accounts, or make the necessary computation, the court may in its discretion permit a competent witness who has examined the books with reference to the point sought to be established, to testify to the result of such an examination, or to present schedules verified by his testimony, showing the details of the computation he has made. But in such [632] cases, unless there is some legal excuse for not producing the books of account from which the witness has obtained the results testified to, they must be produced, if required by the opposing party, for examination, or to enable him to cross-examine the witness. 1 Greenl. on Ev. (13th ed.) § 93, pp. 115 and 116, and note 3. There is no error in the rulings complained of. In this opinion the other judges concurred.