#### *David L. Thomson et al.*v. *Joseph J. Porter, Administrator of Mary Porter.*

Charleston,

Jan. 1850.

When a merchant or shop-keeper relies upon his books as evidence of his sale and delivery of goods, he must produce his original entries, which must be such as are usually made in the course of business and trade, and he is competent to prove his own entries, and the delivery of the goods. This rule, however, does not apply to the case where the goods are taken up on an order, or where they are entered in a pass book, and in either case delivered to a third person, and not to the purchaser; there the plaintiff must furnish other proof of the sale and delivery of the goods, than his original entries, which cannot supply the production of the order, or the pass book, which would be the best evidence to establish the contract. If these be lost, or destroyed, then the common law rule of proving their existence, contents and loss, must, if required, be enforced. So in the case of a merchant or shop-keeper making the entries himself from the statement of his clerk, the latter must prove the delivery of the goods, and the former is incompetent to establish it.

The law which grants the extraordinary privilege to a merchant or shop-keeper to prove his account when he makes the sale, entry and delivery of the goods, does not prohibit or restrict a defendant from ascertaining, by a cross examination, the circumstances under which the entries are made.

Proof of entries in the books of a firm being in the handwriting of a deceased co-partner, and of their being made in the regular an d usual course of business, is sufficient to raise the presumption that the goods were sold and delivered to the alleged purchaser, and must prevail *pro Imito,*unless it be rebutted by proof on the part of the defendant.

*Before*Johnston, Ch., *at Gillisonville, Feb. Fittings,*1849.

Mary Porter, of St. Helena Parish, widow, died in October, 1840, intestate, leaving surviving her six children, two of mature age, one of whom had married the defendant David L. Thomson some years previously, and the other four infants. Shortly after her death, Thomas Talbird, Sr. administered on *59her estate, and continued in the administration until his death in September, 1843, leaving hisson, ThomasTalbiid, Jr. hisex-^ ecu tor. Joseph J. Porter then became administrator *de bonis non*of her estate.

In the lifetime of Mrs. Porter, Thomson, her son-in-law, was said to have received and disbursed as her agent, considerable sums of money. He was at the same time a merchant in Beaufort, in business with one James Thomson, under the firm of D. L. &. J. Thomson. With this firm, Mrs. Porter contracted, as it was alleged, sundry.store accounts. Neither Thomson’s transactions as her agent, nor Mrs. Porter’s accounts with the firm' of D. L. & J. Thomson, were settled at the death of Thomas Talbird, Sr. It also appears that Thomas Talbird, Sr. had on one occasion in his lifetime, put the four infant children of his intestate to board and lodge with Thomson, under a contract for that purpose, which brought him considerably in debt to Thomson.

On the 7th of October, 1844, Joseph J. Porter, as administrator *de bonis non*of Mrs. Porter, filed his bill for account and injunction against David L. Thomson, as agent of his intestate, and Thomas Talbird, Jr. as executor of Thomas Talbird, Sr., charging, among other things, Thomson with a large balance in hand in favor of his intestate, and setting forth his insolvency, as well as the debt of Thomas Talbird, Sr. tp Thomson. This last debt, which it was alleged Thomson was about to put in suit, the bill prayed that Thomson might be enjoined from collecting, and the representative of Thomas Talbird enjoined from paying, in order that he (Porter) might have the benefit of it, by way of discount against the balance charged by the bill to be due by, Thomson to his intestate’s estate, it having been understood, (the bill alleged) at the time of the contract, and always after-wards by Thomson, that said debt was to be paid in this way only.

The bill was taken *pro confesso*against Thomas Talbird, Jr. Thomson filed his answer on the 24th of February, 1845, denying, among other matters, the plaintiff’s allegations as to his liabilities as agent of his intestate, and the largeness of his indebtedness. He admitted a contract with Thomas Talbird, Sr., for boarding and lodgingtheinfantchildren ofMrs. Porter, but denied that he ever had any understanding or agreement with ThomasTalba’d, Sr., to the effect pretended by complainant, or that his demand should be paid by the discount of a debt which he did not owe, and averred that no such proposition was ever made to him, or entertained or acted upon by him. .

In November, 1845, Thomson having commenced suit at law against the representative of Thomas Talbird on the contract for board, the plaintiff Porter, applied to the Commissioner *60for an injunction, according to the prayer of his bill, which was granted.

*^*February sittings, 1847, the Commissioner submitted to Qhance||or Dunlrin his report on the accounts of the parties, bringing Thomson in debt to the plaintiff «$682 73 by way of balance, after allowing him,'in addition to other deductions, 'a credit for $1,250 65 for the accounts of Mrs. Potter with “D. L. & J. Thomson,” which he reported as having been 'sufficiently proved by the books of the'firm, which were iu evidence on the reference's. Exceptions to this report were filed by both parties, all of which were overruled by hi's Honor, excepting the following, on the part of the plaintiff, which were sustained:

“ 1st. Because the Commissioner has allowed the defendant David L. Thomson, credit for three accounts for goods and merchandize, said to have been sold and delivered to Mrs. Mary Porter, the complainant’s intestate, by the firm of David L. &• James Thomson, amounting in all to $1,260 65, whereas it was proved by the cross examination of the said David L. Thomson, after he had sworn to his books, that nearly half of the said goods, or a very considerable portion of them, were got by the members of Mrs. Porter’s family, and her servants with a pass book, arid charged to her by their direction.

“2d. Because a merchant’s book of original entries, if supported by his Oath, is evidence *only*of a sale and delivery to the person charged, and if it appears that the 'goods were delivered to others who called themselves the agent's of the party charged, it is not competent for the merchant to prove their agency by his own oath, or that the person charged admitted the agency afterwards, or that he saw the goods so charged in his possession.

“3d. Because neither the agent's nor the written orders of Mrs. Porter, if there were any. nor the pass book by which the goods were delivered to her servants, were produced or offered to prove the right of the said David L. & J. Thomson to charge the said Mrs. Mary Porter with the aforesaid goods.

*“*4th. Because the Commissioner has refused *to*set off against the accounts of the said D. L. *&*J. Thomson, the reasonable value of the board and lodging of the said David L. & James Thomson, and the family of the said David L. Thomson, for more than three years, or to give the estate of the said Mrs. Mary Porter any Credit therefor; and it is submitted that the reasonable presumption is, if the goods were got by the said Mrs. Mary Porter from the said D. L. & J. Thomson, that they were to be paid for by their board.”

In regard to these exceptions his Honor decreed as follows:

“ In relation to the first, Second, third, and fourth exceptions, it is ordered and decreed, that an issue at law be made *61up* in which- the defendant D. L. Thomson, as survivor of D. L. & J, Thomson, shall be plaintiff, in the nature of an.v action for goods sold and delivered, the object of which issue shall be to ascertain the amount due by the complainant’s intestate on the store account of D. L. & J. Thomson, independent.of any payments.alleged to have been made thereon; in which issue the administrator of Mary Porter, deceased, shall be at liberty to rely in discount on any demand for board against the said D. L. Thomson or James Thomson, deceased, if uppn the evidence adduced, thé jury should be of opinion that board was to have'been charged or discounted ; and that the Judge of the Court of Common Pleas be respectfully requested to certify the verdict, with.the evidence on which the same was founded. It is further ordered,'that the injunction to stay the proceedings at law-, of *D. L. Thomson*v. *Thomas Talbird,*executor, be dissolved, with liberty to the complainant td .renew his motion against enforcing the judgment, after, the same shall have been rendered.”

At the Spring Term of the Court of Common Pleas, 1848, the feigned- issue was tried before his Honor .Judge Frost, when the jury found for the plaintiff $1,250, being the amount of his account, without reference to any payments made thereon,, and *‡350*as a discount for. board. From this verdict and the Judge’s charge, Porter appealed to the Chancellor. At the same Court, Thomson obtained against the representatives.of Thomas Talbird,.on his claim.for board of the infant children of. Mrs. Porter, a verdict for $900, from which no appeal was taken.

,'lij May following, the plaintiff renewed before the Commissioner his motion for an injunction, which was granted. In October of the same year, Thomson moved, before his Honor Chancellor Dunkin, at Chambers in Charleston, to dissolve this injunction, which motion was refused, his Honor declining, to interfere before the regular hearing of the case..

At February sittings, 1849, the case came on to be heard before his.Honor Chancellor Johnston, on the appeal of.the plaintiff/and on. the motion of the defendant, Thomson, to dissolve, the injunction, when the following decree was rendered :

Johnston, Ch. When the Commissioner’s report on a former occasion came before Chancellor Dunkin, he overruled the defendant’s exception, and the sixth and seventh exceptions of.the plaintiff; and the first five of the plaintiff’s exceptions, ordered an issue at law uponcertaiu terms specified in that order.

The case was heard before Mr. Justice Frost, and the jury, under his instructions, found the following verdict at April Terra, 1848, ■

*62“ We find for the plaintiff (Thomson) twelve hundred and fifty dollars, being the amount of his account, without reference to any payments made thereon ; and for the'defendant (Porter) three hundred and fifty dollars, as a discount for board/’

Judge Frost has certified to this Court the proceedings upon' the trial before him, upon which this verdict was rendered: and Mr. Treville moves on behalf of the complainant, that the case be remanded to the Commissioner, with instructions upon certain points, set forth in what he has entitled grounds of appeal from the trial at law.

There can be no doubt upon some of the points: Judge Frost has stated the manner in which the book account of Thomson was proved before the Court: and the charge which he gave as to the competency of the shop-keeper to prove the agency of persons to whom the goods were delivered, or to prove the existence of a pass book as an authority to deliver the goods.

I think no doubt can be entertained as to the propriety of his charge. Certainly when the goods were not delivered to the person charged with them in the book, the shop-keeper is not competent to shew, by his own evidence, that the person to whom they were delivered had an authority, either by pass book or otherwise, to call for and take up the goods on that person’s account.

It appears by the testimony that the defendant in this case, when proving his book account, was unable to say what goods were delivered to Mrs. Porter, aud what to her servants or children. He knew that some goods were delivered to her, but could neither state what specific articles were so delivered, nor what proportion they bore in the whole account.

It is very clear that this is not proof of any one item in the. account.

But it appears also that some of the book entries were proved or admitted to have been made by Mr. Thomson’s partner, who is understood to be dead. 1 think that upon these entries, the fact of delivery of the goods charged in them, is to be presumed *prima facie.*It is the best *evidence*the instances admit of, and is entitled to be weighed and considered, and if there is no contrary testimony, and I see none, these entries should be allowed.

The jury, however, appears to have been instructed, that there was no alternative but to find the whole account or none. It is not the province of this Court to entertain an appeal from the law Court, whose assistance it has asked. But if not satisfied with the verdict, it cannot adopt it. I must say lam not satisfied with this verdict, and shall remand the account to the Commissioner with instructions. .1 have intended what I have said, for instructions upon the point of *63evidence. On the reference before the Conmissioner, he will let in any.other competent testimony which may be produced. Perhaps notice may be given and the pass book produced.

I think the jury was warranted by the evidence to find the charge they did for board, and so far the finding is confirmed.

It is ordered, that the report be recommitted for fuither investigation, on the points not decided by Chancellor Dunkin, whose decision is conclusive upon the'points decided.

A motion was made to dissolve the existing injunction, which is refused.”

From this decree the defendant Thomson appealed, on the following grounds:

1st. Because although it is not. competent for the shopkeeper, of his own motion, to prove either the agency of the persons to whom he delivered the goods for the purchaser, or the existence of the pass book as authority for the delivery, yet if the defendant chooses to make the shop-keeper his witness, for the purpose of proving these facts, it is not competent for the Court to reject the testimony, because it has established the contract of sale in another way than that proposed by the plaintiff.

2d. Because when the shop-keeper is called to prove the entries in his books, he can properly be cross-examined only on his books, and if after the examination and cross-examination on that issue is ended, the defendant goes on to interrogate the witness on a different method of proving the account, to wit, the delivery of the goods by the agency of other persons, or by a pass book, or by the personal acknowledgments,of the purchaser, of the receipt of the goods to the shopkeeper, .subsequently to the delivery, he ceases from that moment to be the witness of the complainant, and becomes the witness of the defendant, and his testimony is competent against the defendant.

3d. Because the witness Thomson, having -been called to prove his book of original entries merely, it follows that when the defendant proposes to examine him as to the delivery of the goods, he proposes to examine him on new matter, aright which although undoubtedly in him, the plaintiff'on the examination in chief could not exercise. But by doing so, the defendant made him his own witness, and if in the course of the examination and cross-examination on such new matter, the account was proved on the plaintiff’s oath by other means than the book of original entries, it was too late.for the defendant to object to the testimony, as either irrelevant, irregular, or incompetent; and it is, therefore, respectfully submitted, that his Honor erred in ruling that Thomson’s testimony on such new matter was incompetent. _

_ 4th. Because in view of the facts before the Court, his *64Honor erred in not dissolving the injunction, the doctrine of set_0ff having no application in the case.

P. *L.*116.

*E.*& *H. iihett,*for the motion.

*DeTreville,*contra.

Caldwell, Ch.

delivered the opinion of the Court.

The first, second and third grounds of appeal, relate to the competency and sufficiency of the evidence to establish the account of D. L. & J. Thomson, for goods sold and delivered to Mary Porter, of whom the defendant is the administrator *de bonis non.*

The Act of 1721 recognizes that it had been before allowed for law in the Province, “that books of account shall be allowed for evidence, the plaintiff swearing to the same, by reason that the merchants and shop keepers in South Carolina have not the same opportunity of getting apprentices and servants to deliver out their goods and keep their books of account, as merchants and shopkeepers have in South Britain,” &e.

The necessity and convenience of such a rule, and its early adoption in the practice of the Courts of this country, in addition to its distinct recognition, are, perhaps, sufficient to raise the presumption, that there had been a previous Act authorizing the admissibility of such evidence, and modifying, in some material parts, the Statute of 7 James I, chap. 12. It is now immaterial from what source the rule originated, as if is permanently established and its construction well settled. . When the merchant or shopkeeper relies upon his books as evidence of his sale and delivery of goods, he must produce his original entries, which must be such as are usually made in the course of business and trade, and he is competent to prove his own entries and the delivery of the goods; the rule was adopted for that class.of cases, but does not apply to the case where the goods are taken up on an order, or where, they are entered in a pass-book, and in either case delivered to a third person and not to the purchaser; there the plaintiff must furnish other proof of the sale and delivery of the goods than his original entries, which cannot supply the production of the order, or the pass-book, which would be the best evidence to establish the contract. If these be lost or destroyed, then the common law rule of proving their existence, contents and loss must, if requited, be enforced. So in the case of a merchant or shopkeeper making the entries hitnself from the statement of his clerk, the latter must prove the delivery of the goods, and the former is incompetent to establish it.

While the law grants this extraordinary privilege to the plaintiff to prove his account where he makes the sale, entry and delivery of the goods, it has, with great propriety, not *65prohibited or restricted the defendant from ascertaining by a cross examination, the circumstances under which the entries are made. This is frequently the only shield against a false or fraudulent account. When it appears on the plaintiff’s cross examination that he did not deliver'the goods to the defendant, or delivered them to a third person, although he made the original entries, the books of account must be excluded, as they are neither within the letter or spirit of the Act— they are not the best evidence of which the case admits, and the withholding of the other higher and better proof raises a presumption against the justice of the claim.

3 Rich. Rett? 353.

The case of *Clough*v. *Little*is an illustration of these views. The plaintiff brought suit for cotton bagging sold and delivered to defendant, and produced his books of original entries, and testified to them as made by himself; he was then asked by defendant’s counsel if he had sold and delivered the bagging himself personally to the defendant. The question was objected to, on the ground that the plaintiff’s examination should be confined to the proof of the entry. Justice Gantt held that the question was admissible, and the plaintiff answered that his clerk reported to him the terms agreed upon between him and Little respecting the sale of the cotton bagging, and upon that report, the plaintiff made the entry and delivered the bagging to a drayman, who told him the defendant had sent for it. A nonsuit was ordered, and the Court of Appeals, in refusing the motion to set it aside, say — that as book entries made by merchants and shop keepers in the regular course of their business, are admitted in evidence from convenience and necessity, the best security which the rule furnishes is, that they must be supported by their oaths, and that were useless, unless the defendant could cross-examine them, for that is the only means of purging their consciences. By this rule, the merchant is allowed to be a witness for himself, and there is no case in which, according to the rules of the Common Law, an exparte examination where the witness is present, and in the power of the Court, has been admitted or allowed as evidence.

The plaintiff, in the case under consideration, on his cross examination, failed to prove a delivery of the goods to the intestate, and his testimony, as neither her orders or passbook was produced, or any proof made in relation to them, was as insufficient as it was incompetent to establish his account. But the entries made in the books by his deceased partner stand upon a different footing ; the proof of their being in the handwriting of one who is dead, and of their being made in the regular and usual course of business, is sufficient to raise the presumption that the goods were sold and delivered to the intestate, and must prevail *pro tanto.,*unless it be rebutted by proof on the part of the defendant. *66As the evidence was insufficient to sustain the verdict as to that part of the plaintiff’s claim for the goods he entered in the books of account, the Circuit Chancellor was right in referring that part of the case to the Commissioner.

The question of set off-was not finally, adjudged by the Chancellor on the circuit. As the continuance of the injunction cannot have that effect while the accounts of the parties are under reference, it would, therefore, be premature to entertain that question’here, as it can only be brought up in the regular way, by exceptions to the report of the Commissioner, which must first be heard on the circuit before they can come here.

It is, therefore, ordered and decreed that the appeal be dismissed, and that the circuit decree be affirmed.

Dunkin' & Dargan, CC, concurred.

Johnston, Ch. absent at the hearing.

*Appeal dismissed.*