| Colo. | Dec 15, 1882
Plaintiffs in error brought suit upon a draft for merchandise shipped from their house in Cincinnati, Ohio, to the defendants in the town of Boulder, this state.
Defendant Andrews, being also engaged in business in the city of Leadville at the time of the arrival of the goods, suit was instituted in the county court of Lake upon said draft, and judgment obtained thereon; from which judgment an appeal was taken to the district court of said county, where, upon trial de novo, judgment was rendered for the defendants, Andrews and Ludwig.
Andrews testified in the district court that a former draft for the same indebtedness was sent to the First National Bank of Boulder, and by the cashier of that bank duly presented for acceptance to the defendants’ clerk, Barney, who, in writing indorsed thereon, accepted the same. Defendant testified that he afterwards saw said draft in said First National Bank of Boulder,
In opposition to this testimony, the plaintiffs produced in evidence the deposition of Oliver D. Bryant of Cincinnati, who deposed that he was connected in business with the plaintiffs in error, Crane, Breed & Co., as general manager and business correspondent, and had been so connected with them for about fourteen years. He further deposed that the draft sued upon was the original and only draft drawn upon the defendants for the bill of goods involved in that action. That it was forwarded to P. A. Burgess, cashier, from Cincinnati on the day of its date; that acceptance was refused, and the draft returned to the drawers.
Witness further deposed that neither said draft nor any other draft was ever accepted by the defendants in error for said bill of merchandise, nor did the plaintiffs ever receive from said defendants an accepted draft in payment of said bill.
After the reading of the deposition, defendants were permitted, against the objections and exceptions of the plaintiffs, to introduce witnesses for the purpose of proving the usages of banks to number all drafts sent them, and to indorse thereon the non-acceptance whenever a refusal to accept occurs, together with the reasons therefor.
Defendants next offered in evidence one of their day-books, usually called a blotter, for the purpose of proving by an entry therein that the original draft sent them through the First National Bank of Boulder had been accepted in the usual manner.
To this offer it was objected that it had not been shown by testimony that defendant kept correct and honest books of account, but the objections were overruled, and plaintiffs gxcgpted,
The business manager of the plaintiffs had testified positively that the draft sued upon was the original and only draft which had been drawn upon the defendants for that particular bill of goods, and that it had not been accepted, as was apparent from an inspection of it.
Defendant Andrews testified that he was himself in Leadville when the bill of exchange reached Boulder, but that his clerk, Barney, accepted the bill in his name.
Barney was not produced. Burgess,, the cashier, to whom the bill of exchange was made payable, was hot produced, nor was their absence accounted for, but defendants were permitted to resort to the usages of banks to sustain the testimony of Andrews, and to introduce, for that purpose, persons, neither of whom were experts,. one of them being the defendant Andrews himself.
In this we think the court departed from the rule of evidence that the best evidence of which the case in its nature is susceptible must be produced.
This court has held that when incompetent testimony is permitted to go to a jury, which may have influenced their verdict, the verdict will be set aside. Hartford Fire Ins. Co. v. Smith et al. 3 Col. 422.
For the errors indicated, the judgment will be reversed and a new trial awarded.
Reversed.