#### WILLIAM COXE *vs.*NATHAN SKEEN & AL.

June 1843

In all cases under the “ book debt” law, Rev. Stat. ch. 15, it is the duty of the party, who wishes to prove his debt by his own oath,to produce the original account, when notice to that effect has been given to him by the other party. A voluntary destruction of the original will not authorize the introduction of a copy.

Where the agreement was that the plaintiff was to receive from the defendant $50 for his work for twelve months, “$10 to be paid when the time is half out, and the balance when the year is outand “if cant agree, part and pay according to what he is worth; not to be considered worth as much the first as last,” and, at the end of 9 3-3 months they parted, and the defendant contended that the plaintiff was to receive only *$10*for the first six months and $40 for the last, the court did not err in informing the jury that, if this were the true construction of the agreement, then the plaintiff was entitled to recover for the time he served, after the first six months, ra ratea-, ble proportion of the $40 for the last six months.

Appeal from the Superior Court of 'Law of Davidson County, at Spring Term, 1843, his Honor Judge Battle presiding.

This case which has before been in this court, see 2 Ired. Rep. 220, was an action of assumpsit, brought upon the following written agreement, viz: “ November 9th, 1838, between Nathan Skeen and Matthew Skeen, an agreement with William Coxe for his work for twelve months at the shoe-making business, and other things, when called on, for the price of fifty dollars, ten dollars to be paid when the term is half out, and the balance when the year is out by authority of William Riley, to commence Nov. 27th, 1838, to be paid to Willliam Riley. Wilson Skeen, witness. A part left out, which is, if cant agree, part and pay according to what he • is worth, — .not considered to be worth as *444mach the first as last.” Pleas, general issue, payment and set off. It was proved and admitted, that the plaintiff worked with the defendants in the shoe shop 9 2-3 months, and then left their employment, upon some disagreement arising between them. For the defendants, it was proved that they had paid the plaintiff ten dollars upon the expiration of six months, according to the contract; and, after proving some other small payments, the defendants offered to prove an account against the plaintiff as a book debt account, by the oath of one of them.. This was objected to by the plaintiff, because the account produced was admitted to be a copy from loose slips of paper, on which the defendants kept their accounts against their customers, and a notice had been given them to produce their original book of accounts. The defendants admitted the notice, and contended that the section of the book debt law, which required the production of the original books, when demanded, applies only to the copies of book debt accounts to be proved by executors or administrators, but the court was of a different opinion, and rejected the testimony. The defendants then offered to shew that the originals had been lost or destroyed, and one of them testified that these accounts were kept on loose scraps of paper; that from these scraps the accounts were drawn off against each customer, and then the originals were thrown aside as valueless,- and thus lost or destroyed. The plaintiff objected to the proof of the loss by one of the parties. The court was of opinion that, whether the loss could be proved by one of the parties of not, and whether an account could be proved as a book debt account or not when the original book was lost or destroyed, the *defendants*could not prove their account under the book debt law., when they shewed that they themselves had destroyed the originals.

In ascertaining the amount of wages to which the plaintiff was entitled for the time he worked with the defendants, they contended that under the contract he could claim but ten dollars for the first six months, and for the residue of the term an increasing rate per month, and that consequently *445for the time wanting to complete the twelve months, for which he had engaged to work, a deduction of a larger sum per month was to be made than was to be allowed him per month for the time he worked after the first six months.— This construction was the more insisted on, because it appeared in evidence that the plaintiffi had no skill in making shoes when he commenced working with the defendants.— The court held, that, though the contract was not very perspicuous in relation to this question, yet if it were admitted that the plaintiff was entitled to only ten dollars, as contended for by the defendants, for the first six months work, he was entitled for the time he worked over six months at the rate per month of $40 for six months, to wit, the sum of $6 2-3 per month. The jury returned u verdict for the plaintiff according to this instruction, and a new trial having been moved for and refused, and judgment rendered for the plaintiff, the defendants appealed.

*Iredell for the*plaintiff.

No.counsel for the defendants.

Gaston, J.

The third section of the 15th chapter of the Revised Statutes is very positive in declaring, that when one of the parties shall have given notice to the other, who seeks to establish a “ book debt” in the manner therein authorized, requiring the book to be produced on the trial, no copy thereof *“*shall be received or admitted as evidence.” There is no room to doubt that this provision applies to all the cases previously mentioned in the chapter as cases of “Book debts.” Now, if we admit, which is by no means eertain, that the accidental destruction or loss of the book •constitutes an exception from this precise enactment, it cannot be conceded that a voluntary destruction of the book, by him who offers a copjq comes within the reason of such an exception. If the slips of paper, on which ihe defendants kept their accounts, are to be regarded, under the equi*446(y 0f the statute, as their book, they were bound *to*produce the original on the trial. If they do not come within the P111’TMTM' °f the statute, neither the original nor a copy was evidence.

The agreement between the defendants and the plaintiff is expressed to be “for,his work for twelve months at the shoe-making business and other things when called on, for the price of ¡$50, ten dollars to be paid when the time is half out, and the balance when the year is outand to it is subjoined a memorandum in these words, “ if cant agree, part and pay according to what he is worth not considered to be worth as much the first as last.” The agreement is not to work for two successive periods of six months each, at the price of ten dollars for the first — and forty dollars for the second period, but an agreement to work one year for fifty dollars, with a stipulation to receive a partial payment at the end of six months. And the proper construction of the clause, providing for a case of disagreement and separation before the year should be out, is, that the plaintiff should receive a fair price for his services, estimating their value at $50 for a' year, and making reasonable deductions because of their being less valuable in the beginning than when he had become more expert in his business. But the defend, ants contended, that under the agreement the plaintiff was to be paid $10 for the first six month’s labor, and forty dollars for the second ; and that the parties having separated before the last term had expired, he was entitled to receive, in addition to the $10, but a rateable part of the $40, on account of the portion which he served of the last term — and that in estimating this rateable part each months labor was to be priced as being worth less than the next succeeding one of that term. Now we think his Honor might very properly have rejected both the contraction and the inferences drawn from it — but, assuming the construction, as he did hypothetically, we do not see that he then erred in his conclusion. If the agreement fixed the *value*of the servi'ces at $10 for the first six, and $40 for the last six months, .the stipulation that .in .the event.of parting he should be paid *447
      *what he is worth,*but *“*not to be considered to be worth as much the first as last,” would seem to refer to the two parts of *the*year, for which his labor had been severally priced as aforesaid. We see no error, of which the defendants can complain, and are of opinion, that the judgment should be affirmed.

Per Curiam. Judgment affirmed.