#### *St. Philip’s Church ads. John White.*

The boohs of a tradesman or mechanic are admissible in evidence only to prove *the*performance and delivery of work done within the mechanic’s shop. Where the work is done outside of his shop, or on the premises of the party charged, such as building or repairing a house, or any other fixture, 'there can be no necessity for books, for the work is apparent and palpable.

*In the City Court of Charleston.*— Tried *before Ms Honor the Recordert July*Term, 1841.

This was an action of assumpsit to recover an account for laying a stone pavement in front of St. Philip’s church. The evidence in detail is given, together with the Recorder’s charge to the jury, for a full and proper understanding of the case. -

“ *Defence.*— Work not done in a workmanlike manner, and that the. city council, and not the church, was the contracting party with White.

*George Thompson*sworn. — Said he *examined the stone*pavement in question; he is a bricklayer, and a judge of work of this sort; it appeared to be very well-done ; thought it a workmanlike job; one or two stones have settled ; the pavement is rather flat; no water, however, can lay on it; there is a great descent north and south ; it has a descent towards the street, but don’t shew it; he examined it last Thursday, (two days before;) $636 is a reasonable charge for such work ; there are fully 2,544 feet of flagging.

Cross-examined. — He said the object of the inclination of a pavement is to throw off the water; the water runs north and south, and off to the street; never saw water settle under the porch ; the pavement is two and a half inches lower on the outer than the inner edge ; the width under the porch is twelve or fourteen inches; the eye cannot detect any slope in the pavement, unless you go off some distance; the wall of the church is about 200 feet; under the porch the width of the pavement is twelve feet, less in some other parts.

In reply — He said the pavement is a curve; the water don’t settle in puddles so as to annoy passengers.

*John*White, plaintiff, introduced his books of original entries; the entry was made as soon as the work was fin*307ished. The books were objected to; objection overruled. Here evidence of plaintiff closed.

*Defence.*

*Charles Parker*sworn — Said he is city surveyor; gave White directions how to proceed with this work; he was called upon by White, after the work was finished, to measure it for him; he refused; his work did not correspond with his directions; witness told the Mayor he would not measure the work; he produced a memorandum, dated 19th August, 1839, detailing particularly the defects, with a plat of the pavement, to which I refer as part of his evidence ; says it is not a workmanlike job ; it ought to be taken up; White knew witness represented the city, and that he give his directions as such; he knew he could not be paid by the city without his certificate; he refused to give it; White ought to take up the whole of this work to make it a good job ; he said he could not pretend to guess at the quantity, knowing there were curves.

Cross-examined — He said he did not make the contract with White; he had nothing todo with the church; represented the city; the custom is, in such cases, for individuals to pay the workmen, and look to council for reimbursement of their portion; there is an inclination to the north; but a large portion to the south there is no inclination at all; in one place there is an inclination inwards to the wall.

In reply — He said he supposes the pavement could be taken up and relaid at from five to seven cents per square foot; the pavement of the portico was laid before he laid out the work for White; don’t think as much of the pavement ought to stand as that table, (pointing to the table in court,) to do it in a practical way.

*Charles P. Frazer*sworn — Said he was at the time clerk of the commissioners of the streets; the city got work of this kind done for $2 20 per square yard; the kind of work White did commands the highest price; accompanied Parker on one occasion while the work was in progress; saw Parker make White take up some of the work; White has done no other work for the city, except some crossing places ; witness called on Mr. Trescot, the chairman of the *308vestry of the church, and urged him to have this work done, assuring him the city would pay one half of the cost; the custom is, sometimes, for the city to pay the mechanic directly; sometimes to pay the owner of the premises where the work is done, and the mechanic looks to him ; Parker would never give more than one certificate; whoever held that got paid.

*William Broklebank*sworn — :Said he was working at the church the time this work was done; he is a judge of such work; thinks it a fair job ; it is a substantial job; done in a workmanlike manner; thinks it worth 25 cents a foot; he has passed there in rainy weather; has been caught there in showers; never saw water stand there.

*Henry J. Harby*sworn — Said he works near the church; travels over the pavement six times a day, and thinks it a fair job; passed in rainy weather; was never incommoded; a fair pavement for throwing off water.

*William T White*— Said he works with *his*father; has frequently done work when individuals and the city divided expenses; invariably sends the bills to individuals; laid a great many pavements in Broad street, when the owners and city divided the expenses ; his father always looked to individuals for payment.

*Richard*Yeadon, *Esq.,*sworn — Said he was a member of council for one year; the usage was for the owners to apply to council for permission to lay flag stones, and for the city to pay one half of the cost. The land on which the pavement was laid -was admitted to belong to the city, having' been conveyed to them by deed, before the work was done.

*Edward Me Crady, Esq.*— Admitted that on the part’of the church, he had offered to pay one half of the bill, and tendered the amount and costs, and did say, if required, would pay it in specie.

*William Bell*sworn — Said he has seen the pavement; examined it particularly the other morning; it is a very fine job; done in a workmanlike manner; has seen pavements with more descent; this throws off the water sufficiently well; never found water lying on it; the object of descent is to throw the water off; it has done this.

Here the testimony closed.

*309A motion was made for a non-suit, on the ground stated in the notice of appeal, which was refused, and the case went to the jury.

The court charged the jury that there were two questions for them to decide. 1. Was the work done in a workmanlike manner 'l 2. Was the defendant liable to the plaintiff, and if so, to what extent ? On the first question, the evidence was summed up and submitted to them. On the 2d, the jury were told they could derive no aid from custom; if any had been proved, it was not sufficiently ■uniform, or of sufficient duration, to presume that this contract was made in reference to it. The books of the plaintiff charged the work to defendant, at the time of its completion, and it appeared to the court, from the evidence of Frazer, that it was properly so charged, and that the church was the contracting- party with White, and he says he called on Mr. Trescot, the chairman of the vestry, and urged him to make the contract with White, assuring him that council would defray half the cost. That White did the work, was not denied. There was no evidence of any contract with the city, and it appeared by the account sued upon, that White was the workman of the church. The evidence on .this point was summed up and submitted to the jury, as a question of fact. They found a verdict for plaintiff, for the full amount of his demand.”

The defendants appealed from the verdict in this case, and moved in the Appeal Court, first, for a non-suit, on the ground, that no express contract was proved, and none could be implied, as the work was done in a public street, over which the defendant had no control, and could not have prevented its performance.

And failing in this motion, then for a new trial, on the following grounds:

1. That the plaintiff’s books were incompetent evidence, and ought not to have been admitted to prove either the liability of the defendant, or the measurement of the work.

2. That books of entry are competent evidence only of goods delivered, or jobs done in the shop or premises of the shop-keeper, tradesman or mechanic.

3. That defendants, upon the testimony, were not liable *310for more than one half, in any event; there being no proof of a custom, such as was set up on the part of the plaintiff, to entitle Him to recover the whole from the defendants.

4. That the verdict was contrary to law and evidence.

McCready, for the motion,

said the church did not deny their liability to pay one half of the price of the work done. The question is, were the books of the plaintiff admissible'? Were they competent testimony'? Cited 2 Bay, 172; 2 ¿6.362; 1 Brev. 105; Jailer’s books have been excluded ; 3 Brev. 251. There was. no necessity for his books —the work is apparent, and will speak for itself; 2 Brev. 127. A scrivener’s books have been held not to be evidence, and the books of planters are excluded; 2 Brev. 157; 1 N. <fe McC. 151. Note books are not evidence to prove a special contract. In *Ferguson vs. Ford,*A. D. 1826, a party can only prove the usual items of a merchant’s contract. The books are incompetent to prove an item for cash lent, or any special contract ;lN.d McC, 130. The dictum was, that shop-books of a mechanic are evidence to prove specific articles in the way of his trade. Loss of time could not be thus proved; 1 N. *&*McC. 186. Printers’s books are evidence, as daily *memoranda,*when no other evidence could be appealed to ; 1 N. *&*McC. 436, *Deas vs. Darby.*Book entries prove only a delivery. 1 P. on Obi. was cited as to book entries. The defendants, if liable at all, could only be liable for 144 feet, or 12 feet square, at $25, $300. Formerly the city required every one to pave before his door; such is not the case now.

Yeadon, contra,

contended that there would have been no difficulty, had it not been for the fastidiousness of the city surveyor.' He contended that this evidence was admissible as evidence from necessity. But by this he does not understand that this is the only proof which can be received. He referred to 1 N. *&*McC. 136, as illustrative of his views as to the nature of the entry : the charge there was for 190 days work and labor ; it was held admissible to prove a particular job of work done, and articles furnished. In 1 N. *&*McC. 186, the entry is a memorandum of daily transactions, and so was this book. 1 N. *&*McC. 436, was when the liability was to arise from something *311else than the delivery. There the entry was inadmissible. He contended the book was admissible, because — 1: it was his handwriting; 2, according to the course of trade; 3, as daily memoranda; and 4, it was a particular job. The entry was admissible, if not to prove the delivery, yet it was admissible to shew that he never looked to the city. This, as a part ofthe *res gesta,*was admissible. The usage of the city is, where a man will flag his own ground, they will pay one half. Throw the books out, and still there was enough to support the verdict — and hence there should not be a non-suit or new trial ordered. The work was done before the church, and $100 paid; they offered to pay one half.

*Curia, per*

O’Neall, J.

The only ground which will be considered is that which makes the question, whether the plaintiff’s book was admissible to prove the entry, “ 1839, August 24th, to furnishing and laying 2544 feet of stone flagging, curb and gutter stone, at 25 cents per foot, $636.” The plaintiff is a stone cutter, and stone mason, and the item set out above is a part of a running account against the defendants for other work and materials, all of which has been paid, except this item, and to it is applicable $100 paid by the defendant generally on the account.

In *Slade vs. Teasdale, 2*Bay, 172, the court ruled that the book of a mechanic was competent evidence in a suit brought to recover for work done or materials furnished in the way of his trade. The reason given for the admission of such book in evidence was, *“*it had long been established as a rule, that all classes of men who were obliged to keep books, in the way of their trade, should be put upon the same footing.” This principle thus settled was enforced in innumerable cases, and with little restriction, until the case of *Lynch ads. Petrie,*1 N. *&*McC. 130. In that case the court wisely undertook to limit the operation of the rule. It was an action for work and labor, as a bricklayer ; the charge or entry was for 190 days work and labor as such. The court held that the entry was inadmissible. Johnson, J., said, speaking of the admissibility of books, *il*those of a mechanic are, I think, admissible to prove the performance of a particular job oí work in the course of *312his trade, and articles furnished.” To this I assent, hut with this qualification, that “the performance of a job of work,” as a book entry, *must be of something which is ultimately delivered to the*defendant; such as work done in shops kept by the plaintiff. In that way it comes appropriately within the reason of the rule deduced from the recital in the county and precinct court Act of 1721, for it declared the law before in the Province to be, “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 had not an opportunity of getting *apprentices*and servants to *deliver*out their goods and keep their books, as the merchants and *shop-keepers*in Great Britain had.” Merchants and *shop-keepers,*it is to be observed, are the only parties who are permitted, under the law thus recited, to verify their books by their own oaths, and that, too, because they could not have apprentices and servants to prove the delivery of goods and keep their books. To come in under this rule, the party must seem to be in the same necessity, and therefore within the reason of the rule. I can readily perceive the necessity for a mechanic, doing work in his shop and delivering it out, to keep books and to be permitted to prove his entries. But when it is work done outside of his shop, and on the defendant’s premises, as building or repairing a house, or any other fixture, there can be no necessity for books, for the work is apparent and palpable, and the only questions are, by whom was it done! and for whom! Neither of these questions are properly to be answered by an entry made by the plaintiff. It only proves a delivery of something made or repaired or sold by the plaintiff Regarding the qualification of the rule stated in *Lynch ads.*Petrie, which I have thus stated and enforced, to be proper, the plaintiff's entry could not, under it, be received.

In the same case, Johnson, J., speaking of the generality of the entry, said, “the evidence admitted in this case is a charge for work and labor only, and contains no specification, except that of time. If entries of this character were admitted, every description of persons who work for him would have nothing to do to warrant a recovery but to measure their services by this standard.” *313In *Thomas vs. Dyolt,*1 N. *&*McC. 186, the same Judge stated, “ that as far hack as it was possible to trace the subject, the books of merchants and mechanics of every description, which have been fairly and regularly kept *as daily memoranda of their transactions, have been admitted as evidence of goods or other articles*deliveredThe fact that entries are “ daily memoranda,” seems to be essential to their admissibility. Hence a general entry like that in *Lynch ads.*Petrie, or as in this case, cannot be received ; for in both cases we have an aggregate charge, a general result, and not that of each day's business or work. We therefore think the entry was improperly received; and hence, as the evidence in the case does not put it beyond dispute that the work was done, and the flagging, curb and gutter stone furnished *by the plaintiff for the defendant,*we think a new trial must be granted.

The motion for a new trial is accordingly granted.

Richardson, Evans, Butler, and Wardlaw, JJ., concurred.