61 Miss. 288 | Miss. | 1883
delivered the opinion, of the court.
This is an action by the appellee to recover from the appellant the value of fourteen bales of cotton delivered to the company at Coffeeville, in this State, to be by it transported to the city of New Orleans, in the State of Louisiana. The declaration contains two counts, one for the non-delivery of thirteen bales shipped on the — day of November, 1879, and the other for the non-delivery of one bale shipped in March, 1880. The defendant pleaded the general issue. During the progress of the trial the plaintiff offered to introduce in evidence certain books which had been kept by him in his business as a merchant for the purpose of establishing thereby, in connection with other evidence, the delivery of the cotton to the defendant. To the admission of these books the defendant interposed two objections, one to their competency as a whole, the other to the introduction of any parts of said book which related to any other time than that at which the cotton sued for was said to have been delivered. To obviate the latter objection, the plaintiff1 asked and obtained leave to amend his bill of particulars so as to charge the cotton sued for to have been lost during the cotton season of 1879 and 1880. The defendant objected to the amendment on the ground that the bill of particulars as amended would give the defendant no notice of what cotton was sued for. The amendment should not have been permitted. The office of a bill of particulars is to give the defendant specific information of the cause of action, a detailed statement of which cannot in many cases be intelligently given in the declaration without great prolixity. It cannot, therefore, be less specific than the declaration, nor include any items not embraced in the scope of the declaration. The plaintiff by his suit demanded the value of certain cotton shipped in November, 1879, and March, 1880, The bill of particulars should have stated, as
The books offered by the plaintiff consisted of what are called cotton blotters and a cotton shipping book which seems to have been made by copying from the blotter's. The blotters contained entries of cotton bought by the plaintiff from his various customers with the weight and price of each bale and the date of its purchase. The cotton so bought was all shipped, as the plaintiff stated, through the defendant, to the city of New Orleans. The entries in these books were made sometimes by one and sometimes by another of his employees; some of these persons were introduced as witnesses and testified that the entries made by them respectively were made in the usual course of business and at or about -the time of the occurrences entered, and that the books were fairly and honestly kept; but they also stated that the entries were not always made from their personal knowledge of the facts, but from reports made to them by others, and it does not appear that the persons communicating the facts had personal knowledge of their existence, or that it was their business to transact the business referred to. The rule is that to authorize the introduction of books of account as evidence of the facts entered, it must be shown that they have been fairly and honestly kept, that they are the books of a party engaged in the business to which they refer, that the entries were made in the usual course of business, at or about the time the facts entered transpired, that the entries are original and made .by a party having knowledge of the facts entered, or that information thereof was communicated to the party by whom the entries were made by some person engaged in the business whose duty it was to transact the particular business and make report thereof for entry on the books, and such report aud entry must be made at the time of the occurrence. or before the facts can be supposed .to have passed from his recollection. Price v. The Earl of Torrington, 1 Smith’s Leading Cases and notes. The depositions of the witnesses Meyer and. Copp should have been excluded on the defendant’s
Judgment reversed.