Veiths v. Hagge

Stockton, J. 1. "We think there was no substantial prejudice to the rights of the defendant, in the permission given by the court to the plaintiff, to interrupt the examination in chief of the witness, Stolley, to enable the plaintiff to ask him whether he had any interest in the suit. Objection to the competency of a witness should, in general, be taken before he is examined in chief. There is no objection, however, to its being taken at any time during the trial, provided it is taken as soon as the interest is discovered. If — 182 — discovered during the examination in chief, it is not too late to make the objection. 1 Greenleaf Ev., section 421. There is nothing to show that the interest of the witness was known to the plaintiff, until it was disclosed, upon his examination, that he was surety in the delivery bond given for the property of defendant attached in the suit. The fact that the bond was on file among the papers of the suit was not, of itself, sufficient to bring the matter to the notice of the plaintiff. That the witness was incompetent by reason of the security given by him, does not seem to be contested by the defendant. 2. The defendant claimed to be allowed interest on his open account against the plaintiff, from the end of the year during which the same accrued; and offered to prove that by the usage and mode of dealing between him and iris customers, having open accounts, all such accounts were considered due at the end of the year; that interest on the same from that time was charged by defendant to his customers; and that such custom was known to plaintiff The court refused to receive the evidence. "When money is due by agreement, at a particular time, interest may be charged after that time ; or when there is a settlement of matured accounts, interest is chargeable from the time the balance is ascertained. But where there is an open account, interest on the same can only be charged after six months from the date of the last item. Code, section 945; Acts 1853, 67. If the defendant is entitled to charge interest on his account in this instance, he can only be so entitled on the ground that the plaintiff kept an open account with defendant, knowing his usage and mode of dealing with his customers; and that this fact amounted to an implied agreement, at least, to pay interest on the account after the end of the year. If it be the creditor’s custom, known and acquiesced in by the debtor, to charge interest, or if such be the uniform usage of the trade, such facts, if proved, are evidence of an agreement, and interest will be allowed. Meech v. Smith, 7 Wend., 315, 318 ; Eas — 183 — terly v. Cole, 1 Barbour, 236; same v. same, 3 Comstock, 502; Williams v. Craig, 1 Dallas, 313. The evidence offered, we think, should have been admitted, and it should have been left to the jury to determine whether, the facts shown amounted to an agreement between the parties that the account was to be considered due at the end of the year, and that interest was to be charged after that time. 3. The account pleaded by the defendant, by way of set-off to the plaintiff’s action, commenced in April, 1855, and continued up to December, 1856. It contained, among others, several items charged against plaintiff, as “cash $100,” and “ cash $146.” The defendant, after having produced the necessary preliminary evidence in verification of his books of account;, and after having proved by one Jensen, who was his clerk from March, 1855, to March, 1856, that plaintiff -during that time was a customer of defendant, and in the habit of borrowing sums of money of defendant, from time to time, which were charged to him in said books of account, without offering any other evidence in support of said cash items charged to plaintiff, offered to prove the same by the said books. The court charged the jury that “ cash, except in small items, to the amount of ten dollars or thereabouts, which appear to have been furnished in the ordinary course of dealing between the parties, is not the subject of book account, and cannot be proved by the books alone. But to entitle the defendant to recover for such items, there must be other evidence than what the books furnish. If there is evidence other than the books, that the money was loaned to the plaintiff, items of such character the jury will allow.” When the preliminary proof is made, as required by the Code, (section 2406), the admissibility of the books of account, is a question for the court; the degree of credit to be given to them, after they are introduced, is to be determined by the jury. They are admissible to prove charges by one party against another, made in the ordinary course of business, and for no other purpose. The question whether the — 184 — charges, sought to be proved by the boobs, are made in the “ ordinary course of business,” may oftentimes be difficult of determination. It has been held that the books of account of a farmer or planter, are not evidence to prove a sale and delivery of articles; for such transactions are not in the usual course of business of farmers. Jeter v. Martin, 2 Bevard, 156; and in Thayer v. Dean, 2, Hill, 677, the same court held that the memorandum books of-a pedlar were inadmissible, because such persons usually do not deal on credit, and cannot conveniently keep books. “They do not fall within that class of persons, (say the court), in whose pursuit or employment, convenience, or the usage of the country, imposes the necessity of keeping books of account.” So, it is held that the article sold must be in the line of the party’s general business; and that the sale of a horse could not be proved by an entry in the books of a dry-goods merchant, or tradesman. Shoemaker v. Kellogg, 1 Jones, 310. If the entiles appear to have been made out of the usual course of business, the books are to be rejected. Lynch v. M'Hugo, 1 Bay., 33. In Leveringe v. Dayton, 4 Washington, C. C., 69S, the plaintiff’s ledger was offered with a debit: “ To duties, $1602.” The court rejected the evidence, not because the entry was in the ledger, but because it was a large charge of money paid on account, entered all at once, without appearing to be in the course of business. The party offering the books must prove what his ordinary business is ; and the jury, under the direction of the court, are to allow or disallow the charges made, according to the credit they may attach to the books, and according as it may be determined whether the charges are or are not made in the ordinary course of business. Upon the question of the admissibility of the party’s book of entries for the purpose, and the extent to which it is allowable to prove by them thq cash items in an account, the rule varies in the different states. In Massachusetts, Maine and New Hampshire, money charges may be proved by them to the extent of $6 66, but not beyond. Union — 185 — Bank v. Knapp, 3 Pick., 109 ; Burns v. Fay, 14 Ib., 12; Prince v. Smith, 4 Mass., 455; Wetherell v. Swan., 32 Maine, 247; Richardson v. Emery, 3 Poster, 220 ; Bassett v. Spofford, 11 N. H, 169. In Pennsylvania, the book of original entries, made by the party, and verified by his oath, is competent evidence of goods sold and delivered, and work done, and of the price, but not of money lent or paid. Ducoign v. Schreppel, 1 Yates, 347. In South Carolina, the book of the party is evidence to prove the delivery of articles sold, or work done, and nothing more. St. Phillip’s Church v. White, 2 McMullen, 312. In Delaware, by statutory regulation, in an action for articles sold and delivered, and other matters properly chargeable in an account, the oath of a plaintiff, together with a book regularly and fairly kept, are declared, to be sufficient in all cases to charge a defendant. Hall’s Eevised Laws, 89. But the courts have held that cash is not a matter properly chargeable in account. Smith v. M’Beath, cited in Harrington, 346. In New York, in Case v. Potter, 8 Johnson, 211, the question of admissibility was not decided; but it was said by the court, that although a shop book might be admitted in case of a sale and delivery, yet the usage “ can never apply to a charge for cash lent, but only to the regular entries of the party in the usual couise of his business.” In Vossbing v. Thayer, 12 Johnson, 461, the court say : that “ books of account are not evidence of money lent, because such transactions are not, in the usual course of business, matters of book account.” In Illinois, the rule in New York has been adopted, and it is held, that upon the necessary and usual preliminary proof being made, in case of open account, composed of many items, the plaintiff’s book of accounts is admissible; but that this does not apply to an action for money lent, as that is not usually the subject of a charge in account — a note bein 11 t taken. Boyer v. Sweet, 3 Scam., 120. — 186 — .. Iii New Jersey, the party’s books are evidence of work d,one and articles delivered; as to cash items, it is held that of a single charge they are not evidence, nor of two or three charges standing alone. Carman v. Dunham, 6 Halsted, 189. Yet where there have been miscellaneous dealings between the parties, and there are, among other charges, entries of cash lent, which appear to have been in the course of business, and are according to custom, it is said the practice has been to admit the books in evidence. Craven v. Shaid, 2 Halsted, 345. But the admissibility of the book to prove such items, has been subsequently denied in New Jersey, in Carman v. Dunham, supra, and still later in Inslee v. Prall, 3 Zabriskie, 458, where the book contained charges for cash, interspersed with other charges against other persons, through a course of years. The court say: “Goods are generally bought and sold in a store, in a shop — often by clerks, frequently in the presence of a third party; they are mostly taken to a man’s family and used there. Services are very generally rendered in public, or there are circumstances which afford some possibility of rebutting fraudulent charges respecting them. Bart not so with money transactions. They occur at aman’s house — on the streets and highways — not in the presence of third parties — perhaps more frequently in private than in public. It can always be safely alleged that they so occurred. You may trace goods to their use, sometimes, but not money, to any certainty. Services generally produce something tangible or visible, with which the service was connected. But no man can prove that at a particular time he did not receive money, unless he can prove an alibi.” In Ohio, if the matters charged are such as generally constitute the subject of a book account — if the book is produced — the performance of the services, if the charge be for work, and the quality, quantity, and delivery of the goods, if the charge be for goods — may be proved by the oath of the party claiming by virtue of the book account. This practice is applicable to • charges for goods sold, and — 187 — labor and other services performed, contained in the account books of merchants, farmers, mechanics, and professional men. As to money charges, a distinction is taken. If, in the course of business, small sums are passing between the parties, these may, it is held, be charged on the book, and proved in the same manner as the other items of the account. Yet money lent or paid, especially if in any considerable amount, is ordinarily not the subject of book charge; a note or receipt is usually taken ; and therefore, though an individual might be engaged in a business that would justify such charges, yet in ordinary cases they are inadmissible. Crane v. Spear, 8 Hammond, 494. The action was on an account, the items amounting to §900— three of the charges, amounting to §700, were for cash lent. It was proposed to prove them by the party’s oath. It was held that it could not have been the intention of the legislature to admit this kind of testimony in such a case. See Smiley v. Dewey, 17 Ohio, 156. We think the general rule is clearly established by these authorities, that a charge for “ money paid,” or “ money lent,” cannot be proved by a party’s book of accounts; that such transactions are not usually the subject of a charge in account; and that charges of that nature are not such as are made in the ordinary course of business by one party against another. It may be safely affirmed that the general rule in the business transactions of men is, that the person lending or paying money usually takes a note or receipt. As is said,' however, by Hitchcock, J., in Crane v. Spear, 8 Ham., 494, an individual might be engaged in a busihess that would seem to justify such charges — as where one’s ordinary business may be said to consist in receiving money on deposit, and paying it out for others. When such fact is shown, the book may be proper evidence of the payment of money. This would not, however, apply to the case of a party engaged in the mere business of keeping a retail store, whose customers purchase goods of him on credit, which are — 188 — charged to them in a running account. Loaning, or paying out mouey to his customers, is no part of such a person’s business. They would not ordinarily expect to find themselves charged in their accounts with sums of money lent or paid. The law admits this kind of evidence in any case, only on the ground of “ moral necessity.” The practice is only justified on the ground, that without such evidence there would, in many cases, be a total failure of proof. At the very best, it is but presumptive evidence, and that, too of the very lowest grade. It should always be received with great caution, and be subjected to the strictest scrutiny. Larue v. Rowland, 7 Barb., 107. The courts and legislatures have jealously limited its operation to that character of dealing to which the law has ascribed, prima facie, a destitution of the ordinary means of proof, viz : the daily sale and barter of merchandise, and other commodities, the performance of services, and letting of articles to hire, and probably the payment from time to time of money placed on deposit- — ■ circumstances so frequent in succession, and so trivial in their individual amount, that the procurement of formal proofs could not be expected, and would not compensate for the time necessary for the purpose. Brannan v. Foree, 12 B. Monroe, 508. It was not sufficient to constitute the books, in this instance, legitimate evidence of money lent or paid to the plaintiff, that the defendant proved by the witness, Jensen, that the plaintiff was a customer at defendant’s “store,” and was in the habit of borrowing, from time to time, suras of money from the defendant, which were charged to plaintiff in his account. This might show a course of business between them. But that is not of itself sufficient. The charges, allowed to be proved by the book, are such as persons engaged, as the defendant was, in the business of keeping a retail store, for the sale of merchandise, would, in the ordinary course of business, be expected to make against their customers. — 189 — The statute has not made any such distinction, as that small sums of money may be proved by the party’s books, but that large sums shall not be so proved. The question whether the charges are made in the ordinary course of business, as well as the credibility of the books when produced, is for the jury to determine. They might more readily admit the sufficiency of the book to prove charges of money of a small, than of a large amount. So they might more readily conclude, that the loan or payment of s'mall sums of money by a retail trader to his customers, and charged in their accounts, was more nearly in the ordinary course of business, than the loan or payment of large sums; and if they should judge that small money charges were legitimately made, in the ordinary course of business, we should not be inclined to hold that they might not so determine, and allow them accordingly. See Sloan v. Ault, and Young v. Jones, post. 4. The defendant, in order to prove the account offered by him in set-off, produced in evidence, as before stated, his books of account, on which the several items charged to the plaintiff in the account offered in set-off, appeared charged against him. The plaintiff introduced no independent evidence on his part, to prove any payments made by him to the defendant on said account, but relied in order to establish the same, on the credits given him for such payments upon the account offered in set-off, and the said books of account. The defendant asked the court to charge the jury, that “if the plaintiff claimed the benefit of the credits given to him by defendant, on his account, on the books of account, and on the accounts set forth in the answer, he thereby made said books and accounts, evidence to go to the jury, and be considered by them, in support of all the items charged against the plaintiff therein, including the cash items, subject to be rebutted as to any of such items, by counter evidence on the part of the plaintiff. And that the plaintiff could not claim the benefit of the items credited to — 190 — him on said account, and at tlie same time exclude from the consideration of the jury, any of the items charged against him in the same account.” The court refused to give the instruction, but directed the jury, that “ the plaintiff was entitled to all credits, and all acknowledgments of indebtedness to him, made upon defendant’s books, if he chose to avail himself of them. .But if, upon examination of the debits and credits, and all the other evidence in the case, the jury believe that the plaintiff delivered property to defendant, and defendant, at the same time, paid over the amount, .or a part of it, for which he purchased said property, and the purchase of the property and the payment for it, was one and the same transaction, then the jury may balance the one against the other.” We think there was error in the refusal of the court to give the instruction as requested by the defendant. If the plaintiff had called for the production of the defendant’s books of account, and had himself given them in evidence, to prove the credits he was entitled to on the account of the defendant against him, there is no dispute but that he would not be allowed to use the credits entered therein, as evidence in his favor, without at the same time making the debits evidence against him, and in favor of defendant. But the authorities go farther still; and it is held, that it is no matter by whom the account is given in evidence, or sought to be used. If the party against whom the entries are made, or account rendered, relies upon, or seeks to avail himself of, credits entered in his favor, he will not be allowed to do so without, at the same time, making the whole account evidence against him. The authorities to this point are both numerous and respectable, and so far as we have been able to examine them, are all one way. Morris v. Hurst, 1 Washington, C. C., 433 ; Bell v. Davidson, 3 Ib., 328 ; King v. Madox, 7 Harr. & J., 467; Waldron v. Sherburn, 15 Johnson, 409; Turner v. Child, 1 Dev., 133; Waggener v. Gray, 2 Hen. & Mun., 603 ; Jones v. Jones, 4 — 191 — Ib., 447; Wakeman v. Marquand, 5 Martin (Louisiana), 2d series, 514. The question is not, whether the money items charged by defendant to plaintiff, were matters properly chargeable in book account; nor whether the plaintiff, by relying on the credits entered in his favor, made the books evidence to prove what they were not before competent to prove; but it is, whether a party seeking to have the benefit of an admission or declaration of another, must not take the whole admission or declaration together; and whether he will be allowed to select what makes in his favor, and exclude what-is against him. 1 Greenl. Ev., sec. 201; Code, sec. 2399. The credit items of defendant’s account against plaintiff were not to be taken as unqualified and isolated admissions of payment, but as payments made on the account as it stood in his books. The question is not so much whether the books are made competent evidence to prove the money items charged, as whether the whole account is made evidence for defendant, and, with the debits as well as credits, is all to go to the jury. 5. The defendant claimed damages against the plaintiff, by way of set-off, for the wrongful suing out of the writ of attachment. No evidence, it seems, was produced by the plaintiff, on the trial of the issue joined on the averments of the affidavit on which tire writ issued, to prove that defendant, at the time of the commencement of the action, had any property not exempt from execution, which he refused to give in payment or security of the plaintiff’s claim; nor was there any evidence produced, that the plaintiff had ever demanded such payment or security; nor that defendant had ever refused to give the same. The defendant asked the court to charge the jury, that the burden of proof was on the plaintiff, under the issue joined, to show such demand and refusal. The court refused so to charge the jury, and instructed them that, “the plaintiff having taken the course prescribed by the law to obtain an attachment, the jury must be satisfied that defendant has es — 192 — tablished the fact that the attachment was wrongfully sued out; that is, that it was sued out unjustly, injuriously, tortiously, and in violation of right, before they can allow the defendant damages for the wrongful suing out of the same.” The defendant had averred that the writ of attachment, was wrongfully sued out, because, among other reasons, he (said defendant) had no property, not exempt from execution, which he refused to give in payment or security for any debt justly due from him to the said plaintiff. On issue joined by the plaintiff on this averment, the burden of proof is, without doubt, on the defendant, to show that the writ was so wrongfully sued out; and if he relies upon the fact, to sustain the issue on his part, that no demand was ever made upon him for such payment or security, and that there was, consequently, no refusal, he must prove it. The true test to determine where is the burden of proof, is to consider which party would be entitled to the verdict, if no evidence were offered on either side; for the burden of proof lies on the party against whom, in such case, the verdict ought to be given. 1 Creel. Ev., sec. 74, note, citing Leet v. Gresham Life Ins. Co., 7 Eng. Law & Eq. Rep., 578. 6. The court directed the jury to find specially on the issue joined, whether or not the writ of attachment was wrongfully sued out; and if they found that it was so -wrongfully sued out, to find specially the amount of damages sustained by the defendant in consequence of such wrongful suing out. The jury found for the plaintiff, but returned a special verdict, that the writ of attachment was wrongfully sued out, and assessed defendant’s damages therefor at ten dollars. The defendant thereupon moved the court for a judgment on said special verdict, quashing the said writ.— The motion was overruled, and judgment in chief rendered for the plaintiff. The proceedings relative to the attachment, are independent of the principal suit, and only auxiliary thereto; (Code, — 193 — sec. 1847), and it has been held by this court, that no issue can be joined in the principal suit, on the averment of facts contained in the affidavit on which the writ issues. Sackett, Belcher & Co. v. Partridge & Cook, 4 Iowa, 416. Although the jury found in their special verdict, returned under the direction of the court, that the writ was wrongfully issued, yet such finding by them, was not by virtue of any issue made or joined in the principal suit, but was returned by them as incidental to the issue made in the cross-action by defendant, on the attachment bond, for damages sustained by him from the wrongful suing out of the writ. The law has provided that the plaintiff, on making oath to certain facts to be stated in his petition, may cause the property of the defendant to be attached. Code, sec. 1846 and 1848. It has made no provision, however, for any issue or proceeding to try the truth of the facts averred in the petition for the writ; nor for the dissolution of the writ, upon its being ascertained that the said averments are not true, and that the writ was wrongfully sued out, even though the same should be made to appear from the verdict of a jury. We do not see that the party injured by such wrongful suing out of such process, has any other remedy for his injury, than by an action on the attachment bond, unless in cases where an action of trespass would lie. Eor the errors in the instructions above referred to, the judgment will be reversed. Judgment reversed.