Chase v. Smith

5 Vt. 556 | Vt. | 1833

After argument by counsel, The opinion of the Court was pronounced by

Baylies, J.

The bill of exceptions shows that the de-defendant offered in evidence the company ledger containing the account against said Chase, the elder, which account was previous to the plaintiff’s work for the defendant. And in this account, said Chase, the elder, had credit for the plaintiff’s work. The plaintiff objected to said book going to the jury as evidence, and the Court excluded the same.

It was decided in the case of Higham & wife vs. Ridgway, 10 East. 109, that if a person have peculiar means of knowing a fact, and make a declaration, or written entry' of that fact, which is against his interest at the time, it is evidence of the fact, as between third persons after his death, if he could have been examined to it, in his life time. And therefore an entry made by a man-midwife, in a book, of having delivered a woman of a child on a certain day, referring to his ledger in which he had made a charge for his attendance, which was marked as paid, is evidence upon an issue as to the age of such child at the time of his afterwards suffering a recovery. — (See also 4 T. R. 514-669. — 5 T. R. 121. — 1 Camp. 367.)

But at common law, a party to a suit cannot give in evidence his own book without evidence to support it: This appears in the case of Price vs. Torrington, Salk. 285—“ The plaintiff being a brewer, brought an action against the Earl of Torrington for beer sold and delivered, and the evidence given to charge the defendant was, that the usual way of the plaintiff’s dealing was, that the draymen came every night to the clerk of the brew-house, and gave him an account of the beer they had delivered out, which he set down in a book kept for that purpose, to which the dray-men set their hands, and that the drayman was dead, but that this was his hand set to the book; and this was held good evidence of a deliver; otherwise of the shop-book itself singly, without more.” — (See also Pitman vs. Maddox, Salk. 690.-Bul. N. P. 282.)

In the case of Lewis vs Morton, 1 Wash. 76, the Court say, “Ever since the decision of Ld. Torrington’scase, the law has been settled, that a book of accounts in the handwriting of, and kept by, a clerk, who is since dead, is proper evidence upon these facts being proved.”

But the case at bar, does not come within any common law principle. Here the defendant credited the plaintiff’s labor to the old account of the plaintiff’s father, without the knowledge or consent of either of them. Unless there was evidence tending to show, that the plaintiff consented that his labor should be credited and applied in payment 'of his father’s old debt, it would be extremely wrong to suffer this entry in the ledger to go to the jury as evidence : it would be saying, the defendant had a right to make evidence for himself, and with it defeat his own solemn contract, by turning the plaintiff’s labor to pay his father’s old debt, contrary to what was expressly agreed between the parties.

Young & Hill, for defendant. Sumner & Fletcher, for plaintiff.

The County Court, in their charge to the jury, say, “There can be no doubt the farther can verbally sell or give his minor son his time; and if this be done, the son is entitled to his subsequent earnings.” This doctrine seems to be well established by the decision of this Court, in the case of Joseph Chase 2d vs. Curtis Elkins; 2d Vt. Rep. 290. In that case, the Court did not consider that the contract between father and son must be proved by writing.

We find no fault in the proceedings of the Court below in this action ; therefore,

Judgement is affirmed.