Cross & Brigham v. Willard's Estate

46 Vt. 73 | Vt. | 1873

The opinion of the court was delivered by

Barrett, J.

The- objection and exception were to the introduction of the hotel books of Willard & Brigham, “ to show that no credit was given to Cross & Brigham on those books.” The plaintiffs had given evidence of the transaction constituting the alleged sale of the cigars, and according to that evidence, a part of that transaction was the directing, by Willard, the clerk of the hotel, to give credit for the cigars on the books to the plaintiffs. The propriety of the books as evidence for the purpose named, is fully tested and shown by inquiring what would have been claimed and argued with propriety and force in behalf of the plaintiffs, if the books had not been produced and offered on the trial. No one can fail to see that the non-production of the books would have made an unanswerable point against the defendant, that the credit was in fact given according to the alleged direction of Mr. Willard. Not to have produced and given the books in evidence, would be likely to render nugatory the testimony of the clerk, Johnson, that no such order was given by Willard. It is quite as proper and legitimate to preclude by evidence an otherwise legitimate argument and inference against a party, as it is to show a fact material to his causo of action or defense. The books in this case were introduced and admitted for that purpose. In this respect, and for such a purpose, the introduction of the books bears no analogy to the use of books as evidence to prove the sale and delivery of merchandize, or to prove any other transaction upon and in virtue of which the party claims the right to make a charge, and to hold the other party liable. It was for this last use and purpose that the books were held not to be proper evidence in the cases cited by plaintiffs’ counsel. The case of Missisquoi Bank v. Evarts, 45 Vt. 293, illustrates a distinction in the uses which may properly be made of books as evidence.

It is to be noticed in this case, that the exception is confined to the admission of the books for the purpose named. No exception was taken to what was arguecl to the jury with the permission of the court. Nor was any exception taken to the charge of the court to the jury. So we have no occasion to notice anything but the point presented by the exception taken.

Judgment affirmed.