Putnam v. Goodall

Eastman, J. This action is stated to be assumpsit, but no specification or statement of the grounds of claim accompanies the case as sent from the common pleas, and we — 422 — are left somewhat in uncertainty as to the real cause of aetion. We suppose, however, that the action was brought against Mr. Goodall for money advanced, labor performed, or materials furnished in rebuilding the factory; that these were all furnished to Pratt, and that the question of the case was, whether the credit was given to Goodall through Pratt, as his agent, or to Pratt himself. . It is upon this view of the case, substantially, that our opinion is founded. Four questions are presented by the case: First, was the ruling of the court correct in ordering the rule to be discharged? Second, ought Mr. Goodall to have been permitted to state his defence without being first sworn ? Third, was the testimony in regard to the lease properly received, without producing the lease ? And fourth, was the testimony respecting the money, taken in connexion with the book, competent? With regard to the first question, we think that the ruling of the court below was wrong, and that the case was not an improper one for an auditor, if the court saw fit to refer it. The grounds upon which the decision was founded are not stated; but we may presume that the ruling was made upon the authority of Brewster v. Edgerly, 13 N. H. Rep. 275, in which it was held that the statute does not authorize the reference of a'case to an auditor, where no investigation of accounts or examination of vouchers is necessary, or else upon the ground that there were no accounts or vouchers, on the part of the plaintiff, to be examined. But, we think, the ruling incorrect upon either ground. Whatever may have been the particular character of the plaintiffs’ claim, whether an account, parol contract or other matter-, properly included in the action of assumpsit, the defence required the examination of the defendant’s accounts. This appears from the case. And wherever a cause requires the examination of accounts and vouchers, in any of its parts, whether for the plaintiff’or defendant, it may, in the discretion of the court, be committed to an auditor. This the — 423 — broad language of the statute authorizes. “ Whenever it shall appear to the superior court or court of common pleas, that an investigation of accounts or an examination of vouchers is necessary, in any action pending in such court, they may appoint one or more auditors to state the account between the parties, and make report to the court.” Rev. Stat. ch. 189, § 1. In Jones v. Parker, 6 Foster’s Rep. 20, the action was assumpsit upon a promissory note, and the defence rested upon the ground that the note was not that of the defendant, but of the Avery Factory Company ; but it appearing that the trial of the issue would require the examination of several books of account, receipts and other papers, the court held it a proper case for an auditor. That case is an authority in point for the present one, and shows that the reference to the auditor was correct, and that the rule should not have been discharged. As to the second point, we need only say that the ruling of the auditor was correct. A party may appear before an auditor, either by himself or by attorney, and, before introducing evidence, may state his case, either by himself or by attorney; and it makes no difference that he afterwards proposes to be a witness. If the auditor sees fit to admit him, it is within his discretion so to do. There is no rule, either of law or of practice, that necessarily excludes him, more especially where the party is himself a member of the legal profession. But the testimony in regard to the leasing, we think, was incompetent. The lease should have been produced. Notice was given to produce it, and no excuse shown for not complying with the notice. The defendant contended that Pratt was not his agent, while the plaintiffs insisted that he was, and that was one of the questions before the auditor; and had the lease been produced, it might, perhaps, have shown the true relation existing between them. At all events, it was incompetent for the defendant to testify that — 424 — the factory was leased to Pratt, when the contract between them was in writing, and when no excuse was given for not producing it. The term “ leased ” imports a letting; a contract between the lessor and the lessee, by which the latter holds the premises of the former for a compensation paid, or to be paid. When, therefore, the defendant testified that the factory was “ leased ” to Pratt, it was something more than a mere introductory statement; it was parol testimony of a contract which was admitted to be in writing, and which was material, and as such it was secondary and inadmissible. All evidence which shows upon its face that better remains behind, is secondary and incompetent; and unless the proper foundation be laid for its introduction, it cannot be admitted. These are elementary principles, and it is hardly necessary to cite authorities to sustain them. In the case of a written document or contract, the instrument itself is always regarded as the primary or best possible evidence of its existence or contents, and until it is shown that the production of the instrument is out of the party’s power, no other proof of the fact is, in general, admitted. Lebree v. Dorr, 9 Wheat. 558, 563; 1 Phil. Ev. 421; Hart v. Yunt, 1 Watts 253; United States v. Gibert, 2 Sumner 19, 80, 81; Phil. & Am. Ev. 440, 441; 1 Greenl. Ev. § 84 and notes. The last question relates to the competency of the defendant’s testimony, in connection with his book, as to the payment of the thousand dollars to Pratt. The plaintiffs contended that Pratt was the agent of the defendant, while the defendant insisted that he was not, but that there was an agreement between him and Pratt that he should furnish him $1000 towards rebuilding the factory. It was material for the defendant to show how this was, and that Pratt was not his agent. To make this out, he was himself a witness in chief on the hearing, and in connection with his testimony, in that way, his book was used. That he could be a witness in chief is well settled. Mann v. — 425 — Locke, 11 N. H. Rep. 248; Lovering v. Lovering, 13 N. H. Rep. 513; Smith & a. v. Smith a., 7 Foster’s Rep. 244. As such witness in chief, he could state any matters that his book might show, if he could do so from recollection. It would be no more than a memorandum of events, which, if he was willing to testify that they had taken place, would be admissible, unless incompetent upon other principles. Had this been a trial before a jury, in open court, the defendant could not have testified for himself as a witness in chief, nor could he have used his book to establish any fact collateral to the direct issue of debt or credit between himself and the plaintiffs. Books of account are not admissible, as between the parties, to prove independent or collateral facts; for if admitted with the oath of the party, then he testifies for himself; if without his oath, then his naked written statements are received as evidence, and he can thus make testimony for his case. Batchelder v. Sanborn, 2 Foster’s Rep. 325; Woodes v. Dennett, 12 N. H. Rep. 510; Little v. Wyatt, 14 N. H. Rep. 23. But the present is not a case of trial before a jury, where the book can only be used with the suppletory oath of the party, and where, with such oath, the book can only prove the debt or credit existing between the parties; but a hearing before an auditor, where the party may, and in this case did, testify in chief for himself, and to such matters as had a tendency to establish his defence. It was not the book that was to prove that Pratt was not his agent, but his own testimony; and, as the court understand the case, the book was only a memorandum of the items. It is with that view that, we think, it was admissible. If we were to understand from the case that the book was admitted to establish the fact that Pratt was not the defendant’s agent, then it would be incompetent. Holding that the rule appointing the auditor should not be discharged, and that the testimony in regard to the lease was incompetent, the report must of course be recommitted., — 426 — It is not, therefore, very material to announce any opinion in regard to the book, further than to indicate what we consider to be the rule governing the admission of books of account in evidence, and that it may be some guide in a future hearing of the case. Report recommitted.