The Daily clarion. [volume] (Jackson, Miss.) 1866-1888, 1867-04-19
DECISIONS OF THE HlGH COURT
OF
ERRORS AND APPEALS
OCTOBER TERM, 1866.
Edwin Moody

Edwin Moody,
No. 10,034 vs..
j. NJ Roberts & Col
Error to the Circuit Court of Madison
county.
Opinion of the Court delivered By Jus
tee ETleh
This was an action of assumpsit, on an open
account for goods sold and delivered. y VEL ~
diet having been found for the pialntlfis, lhe
defendant moved for anew trial on the GROUND
that the verdict was contrary 10 law ana 6Ni-
dence and the instructions of the court. Inns
notion being oyerruled, the delehdant pe .',,
brings this writ of error, and assigns for error
first the refusal of the court 10 grant new
trial; and. second, that the instructions given
for the plaintiffs were erroneous.
The bill of exceptions shows that hucheI,
witness for the plaintiffs testified that he acted
as clerk for them during the years 1893 ana
1859, that he dad compared the accounts sueu
on with the books, and found that tiny CORES
pended. and were correctly copleu' tnat pi.'inI
tiffs were in the habit of keeping honest an
correct books; that he had never acted as book,
keeper. but simplv.as clerk. He further stated
that when defendant commenced business Win
plaintiffs, he had pass book, upon ane pm .T
sentation of which he ordered plaintiffs to sell
goods upon his credit: that witness as clerk
sold to defendant. or to some one presenting
the pass book. the articles III the account
marked With a certain dtlN he'N
knoWIe[ge of the sale of the articles mafkeu
with A certain other mark as having been sold
BY plaintiffs or some one else III the STORE ut
items marked with these two marks ahlouhteu
to something like 500, and he knew ho1 no., ms
of the balance of the account. That the clerks
in whose handwriting the entries seem 70 nave
been made WE re living, and had none Oh WIN
the Madison Rifles to Pensacola, as ne uhdeI-
stood. and that the bookkeeper hau alsV soI i
That about two-thirds of the goods sold by VII
ness, and ofthose. of the sale of when Dy olh-
erS he had some knowledge, had been SOFA on
the production of the pass-book. i MS was All
the evidence for the plaintll1s.
The def ndant testified that he supposed ne
was owing plaintiffs some three or four mum
dred dollars: that what was said by witness;
Rucker about the pass-book. was True lie liau
made search for the pass-book, put was uhioie
| to find it. :.
! In an action for goods sold and delivered, it
/ is of course, incumbent upon the plalhtiHs 10
/ prove by legal evidence, TO the satisfaction vi
the jury, the sale and delivery OF the
/ their price or value. Obviously the best ana
most satisfactory testimony for TINS purpose Is
| that of witnesses, either the party hnnseh, OF
/ his clerks employees. by whom the goods Were
Sold or who have know ledge OF the lact Vi sur;
| But the facts may not be within the personal
| knowledge of the party, and his clerk may dle
/ or remove beyond the reach OF the process ol
the court, or for other reasons IL may MOI pt
practicable TO obtain their testiln lI,
/ nv Besides the witnesses, If present
NAV not be able to TecOllect the transactions
/ and this is especially liable to occur IN the
| case of long merchants accounts, consisting
/ of a multitude of small items contracted
I from time to time To obv1ate the eVlis
likely to arise from this source, an lnnoVa
ton has been allowed in the general princl
pies of the law of evidence, so far as SO adj
NIT, in cases where other satisfactory proc
is not attanable, the private entries made
by the party himself or his employees,n ms
own books of account, as evidence III his Ia
! var. This concession is a great enlargement
of the principle of the common law respect
ing the admissibility of private entries, and
although not unknown to the civil law, APP
pears among countries in which the common
law prevails, to be peculiar t.
the jurisprudence of the United
| States. And here, the circumstance;
under which the books of account o
a party are admissible in his favor, and theil
weight and value as evidence when admit
ted, are different in almost every State, ant
| have varied from time to time IN the same
State Nor are the Courts any better agreed
as to the principle upon which the evidence
is received. Some hold that the entries art
original evidence, as part of the res geStre
and Others that they are but secondary evi
dence, and not admissible at all without
proof that no better evidence is within the
power of the party. Some again put it OF
the grOudsz of the general usage of bust
ness, and the implied confidence reposed by
the purchaser in the vendor, that the &C
count will be kept correctly, and in accord
ance with the usage; while others are con
tent to rest it upon principle of supposed
necessity to prevent the occurrence of injus
tice and hardship from total failure o
proof
But upon whatever principle it depends
the usage has become firmly established, il
some form or other, as a part of our law
| Without attempting a review of the numer
Gus adrIdications the subject, viii
content ourselves with stating what we APP
prehend to be the proper rule on the sub
ject.
When direct proof of a claim for goods
sold or for services rendered. cannot b,
made by the oath of the party, or of othel
witnesses, the books of account of the party
are admissible, not as conclusive evidence o
the claim, but as testimony tending to eS
tablish it, the credit of which is to b'
weighed by the jury. The competency o
the books as evidence in the particular cast
is a question fos the Court, and in order tt
Justify their reception, it must appear tha
they are the regular books of account of thu
party, containing the original entry of hi
transactions from day to day, in the regular
course of his business, and made at or nea
the time of the transactions to be proved
and that they are fairly and honestly kept
The entries must purpOrt to have been made
with view to charge the opposite party
and alterations and additions on the accoun
sued on apparent on their face, must be sat
isfactorily accounted for. No mode is pre-
scribed by law in which a book must b,
kept to make it evidence, and the ques
ton of competency must be deter
mined by the appearance and character o
the book, regard being had to the degree o
education OF the party, the nature of hi
employment, the manner of his charges
against other people, and all the circumstan
ces of the case and it will not be evidence
of any charge not within the regular course
of the business of the party, nor of any fact
that may arise collaterally in the case
custom has grown up in some parts o.
this State, which seems to have been fol
lowed in the present case, of giving in evi
dence copies of accounts proved by witness
es to have been correctly transcribed from
the books, and this course derives some sup.
port from the language of the court in the
several cases of Hazlip VS.. Legett, S. & NJ
sos Simmons VS.. Meares, s S. & NJ, 397
and Moore vs.. Joyce, % Miss ,5S4 But there
does not seem to be any sound principle up
on which such practice can be sustained
1t is going quite far enough to permit the
original book itself, after being inspected
by the court, and subjected to the scrutiny
of the opposite party, to 60 as evidence tC
the jury, and in no other way can the credit
due TO such testimony be properly estimated
1t is not necessary to go into any minute
criticism of the instructions given on either
| side in the court below. 1t is clear that, ac
| cordIng to the rules herein laid down, the
verdict was for a much larger sum than was
warranted by the evidence, and that il
ought to have been set aside. For this error
the Judgment will be reversed and the
cause remanded for new trial.