Oberg v. Breen

The opinion of the court was delivered by Beasley, Chief Justice. This was a suit -on a book of account, which was admitted to be barred by the statute of limitations unless the plaintiff’s book of account was evidence of payments on such claim by the deceased. The last item on the debit side of the account was of the date of August 8th, 1877, and the writ issued on the 28th October, 1886. To bridge over this long period the book contained a numerous [146] train of credits of moneys paid. The book was proved as a book of original entries and was offered to prove the account and the credits. It was rejected at the trial as evidence for the latter purpose. This decision, in my opinion, was clearly right. A man’s book is not testimony in his own favor, touching the receipts of money by him. By immemorial usage-a person’s own books have, for certain defined purposes, become legal evidence recognized by repeated decisions of the courts of this state. They are legitimate prima fade evidence to "show the sale and delivery, in the usual course of business, of personal property and its price, and of work and labor performed and the sums due for such services. Thus far the rule that a man cannot put in evidence his own written memoranda has been abrogated, the reason of such infringement of the common law principle being that it was a necessity in the transaction of certain classes of business. It has, however, never been authoritatively declared in this state that these entries have any evidential force beyond these functions. It is true that it was said in the opinion read in the Court of Errors in the case of Inslee v. Prall, 1 Dutcher 665, that such books, when there have been mutual dealings between the parties, are competent evidence to prove the payment of money when such money has been paid on account of claims that might be proved by books of account, but this was an expression entirely obiter, for no such question was present in the record, and the contrary view was supported in the Supreme Court by a weight of argument which has always seemed to me to be well-nigh irresistible. But be this as it may, it has never been judicially indicated, so far as it is remembered, that a credit given by a trader to his customer is evidence in his own favor. No reason is perceived why it should have-such force. As a mere memorandum showing the state of the account and being devoid of all value as testimony in a court of justice, it answers all the purposes of the merchant keeping the books; and, as to the customer, the entry is of small importance to him, as, if a man [147] of ordinary prudence, when he pays money he does the act by a check or takes a receipt. There is no ground, therefore, for contending that entries of this character are so highly convenient in the course of trade in this department as to be a necessary concomitant to it. The books were not admissible evidence for the purpose for which they were offered. The foregoing conclusion makes it unnecessary to consider the alternative question discussed in the briefs of counsel. The judgment should be affirmed. For affirmance — The Chancellor, Chief Justice, Mague, Reed, Scudder, Van Syokel, Brown, Clement, McGregor, Paterson, Whitaker. 11. For reversal — None.