22 Barb. 147 | N.Y. Sup. Ct. | 1856
The complaint was for goods, &c. sold and delivered..- On the trial the plaintiff introduced his books of account in evidence; after proving that he kept correct books, &c. The account against the defendant in the books, contained two cash charges, and an item for the plaintiff’s due-bill for goods. The defendant now objects that the books are not evidence of these charges. It seems he did not take this specific objection before the justice. He there only .objected to the introduction of the books upon the ground that they had not been sufficiently proved. The defendant also claims, in addition to his credits in the account in the plaintiff’s books, to be allowed for drawing the boards and plank testified
If the defendant relies upon his credits in the plaintiff’s account, he cannot object to the two cash charges and the charge for the plaintiff’s due-bill charged in the account. The rule is, that if a party makes the books of his adversary evidence in his favor to prove his credits, he is bound to take the whole account together, and to admit the whole of the debit side of the account; and the rule is the same whether the books are produced by the plaintiff or the defendant. This principle was affirmed as law in the case of Low v. Payne, decided by this court, at general term in the 4th district, in 1847 or 1848. (1 Cow. & Hill’s Notes, 227, 8, 9. 1 Wash. C. C. Rep. 413. 15 John. 409. 5 Taunt. 245.) The case does not show whether the two witnesses, Ransom and Palister, testified to the drawing of the same or different lumber. I incline to the conclusion that they speak, in their testimony, of the same lumber. If my conclusions as to this part of the case, and also as to the identity of the lumber spoken of by Palister with that mentioned in the plaintiff’s account, are correct, judgment should have been given by the justice in favor of the plaintiff. But as these questions are mere questions of fact, and as the evidence in regard thereto is not undisputed and not entirely free from doubt, I think that the county court ought not to have reversed the judgment of the justice, even if it should be conceded that it was against the weight of evidence. The rule seems to be, that it is only where the facts are undisputed or the evidence is not conflicting, and is free from reasonable. doubt, that the judgment of the justice can be set aside upon the ground that it, or the verdict of the jury on which it is founded, is against evidence. (8 How. Pr. Rep. 377. 18
In accordance with these authorities the. judgment of the county court must be reversed, and that of the justice affirmed.
C. L. Allen, Paige, James and Rosekrans, Justices.]