Hoye v. Newton Lumber & Manufacturing Co.

Mayes, C. J., delivered the opinion of the court. The testimony of Brown as to what the boohs showed was clearly incompetent in this case, and should have been excluded. The , best evidence was the books, and they should have been produced. If it be true that the only question involved was one of overcharge, and that the items themselves, as shown on the copy of the account sued on, were not denied in the counter affidavit, it is still true that the question of overcharge involved the books, since the copy of the account showed the price per thousand charged for the lumber, and this was denied. If the books had been produced, we cannot say that the contention of appellant that the rate charged for the lumber would not have been shown to be as claimed in the counter affidavit. The proof of the account depended upon the books, and the books should have been produced. Reversed and remanded.