Marsh v. Case

Lyost, J. This case does not present a very broad or difficult -field for legal investigation. Tbe single question to be determined is, whether the testimony is sufficient to justify the opening of the account stated and surcharging it with the disputed item of five dollars against the plaintiff. The justice held that the testimony was not sufficient for such purpose, and based his judgment upon the account stated by the parties. Upon the same testimony the county court held otherwise, and reversed the judgment of the justice. We are to determine which of these tribunals adjudged correctly. The account book kept by the defendant, and containing the accounts between the parties, is before us. On page 8 we find the disputed item, with others, entered as follows : Or. April S3, paid George Marsh. $5.00 May 6, to 3 bushels potatoes. 1.80 May 7, to % days’ work. 65 May 10, to 1 days’ work. 1.25 The work here entered was performed by the plaintiff for the defendant, and the potatoes were sold and delivered by the former to the latter, and all of these entries are, in form, credits to the plaintiff, and not charges against him. Besides, there is nothing in the entry to show what the $5 entry means. The amount stands there under the heading of “Or.,” and opposite the name of the plaintiff the abbreviation, " pd.,” is interlined before the ñame, and a black line is drawn between the name and the next credit in the account. But all these circumstances together fail to convey to the mind the idea that the plaintiff stands charged there with five dollars, cash, paid to bim by the defendant on account. The fact is, the book contains no such charge, and of itself furnishes no evidence, whatever, to impeach the correctness of the account stated by the parties. But, were the fact otherwise, and were this a charge to the plaintiff of five dollars paid to him in cash, the book is not evidence of the correctness of the charge, for the reason that in respect to that particular item, the book is not verified as required by the statute. The defendant testified, on cross-exami [534] nation, as follows: “ 1 did not malee the entry 23d of May of $5.” We find in bis testimony no explanation or qualification of tbis positive statement. We think that tbe account book fails to fumisb any evidence of tbe alleged mistake in tbe account, and we accordingly dismiss it from our consideration. Does tbe testimony, aside from tbe account book, prove tbe payment to tbe plaintiff of tbe five dollars in controversy? We think not. Tbe evidence to surcharge a stated account should be clear and satisfactory, much more so than is tbe evidence in tbis case, which tends to show tbe existence of tbe alleged mistake. Indeed, upon tbis subject, tbe testimony is about balanced. Certainly there is not such a preponderance in favor of tbe theory of tbe defendant as will justify a court in opening tbe account and making a new balance. We are of tbe opinion that tbe judgment of tbe justice ought not to have been disturbed. It follows that tbe judgment of tbe county court must be reversed, and that of tbe justice affirmed. By the Court. — So ordered.