13 N.H. 420 | Superior Court of New Hampshire | 1843
There is no particular form in which the book of a party must be kept, in order to its admission as evidence, in support of his account. But it must be kept in such a mode as to show, of itself, a charge against the adverse party, and the nature of that charge, so that the book, in connection with the parly’s oath that the book is his original book of entries, that the charges are in his hand-writing, that they were made at the time they purport to have been made, and at or near the times of the delivery of the articles, or the performance of the services, will show the nature of the claim, without further evidence from the party to interpret the meaning of arbitrary characters, the signification of which is known only to himself. It may be in such characters as are in use by persons of a particular trade or profession, and which would not readily be understood by persons not conversant with the subject matter; and in such case, evidence of other persons may be admitted, to explain the meaning usually attached to characters of that description. But in ordinary cases, the suppletory evidence of the party, in support of his book, goes no further than to the particulars above specified. 3 N. H. Rep. 157, Eastman vs. Moulton.
“ The debit side of the plaintiff’s account is not objectionable in this respect. The nature of the service is sufficiently set forth, and there is no exception that the entries on that side are in such form that it cannot be collected from the book itself that the charges were intended to be made against the defendant. If the straight marks upon the credit side of the account had been used to make charges, they would not of themselves be sufficiently specific to come within the rule; but a question might arise whether they were not made so by the explanation which precedes them.
To be admissible, the entries should be made at or near the time of the transaction, and the oath of the party must verify that fact. No particular limit is fixed beyond which the entry cannot be made. The court must judge whether
The entries must have been made at the time they purport to have been made. This implies that there must be dates, so far, at least, that the court may see that the case comes within the rule. But it is not necessary that the precise day of the month should be affixed to the charge in all cases. To require this would exclude the books of many individuals. The book has been admitted when only the month has been specified, it appearing to be regular in other respects.
The charges must be specific and particular; but in this respect some latitude is allowed, depending upon the nature of the case. See 11 N. H. Rep. 167, Bassett vs. Spofford. In a charge for work and labor, continuing from day to day, for several days, it is not necessary to set down a charge fox-each day by itself. But a brick-layer’s charge for “ 190 days üvork,” and a physician’s charge of “ 13 dollai-s for medicine and attendance in curing the hooping-cough,” have been rejected as too general and indefinite. It has been said that this is a matter which must reside very much in the discretion of the judge, to be exercised according to the nature of the subject, and its susceptibility of being precisely charged. See the cases collected 2 Cotoen &f Hill’s Phil. Ev. 699; Greenl. Evid. 141. If the charge be for labor, and it be a continuing service for three or four days, there seems to be xxo very cogent reason why it may not form the subject matter of a single charge. Oil the other hand, if it continue for months, there is no reason, if the party relies upon his book, why he should not make his charges from week to week, or in other limited terms.
Upon the principles thus stated, it is apparent that some of the charges in the plaintiff’s account are not such as can be substantiated by his book and suppletory oath. Not having the original book before us, we have merely laid dowrx
It has been said, in the argument, that the credits on the plaintiff’s book were used to restrict the defendant’s claim in the other action, in which he is plaintiff, founded upon the subject matter of those credits. The most favorable light in which this can be viewed for the plaintiff is, to regard the claim in that action as if it had been filed in set-off in this, both actions having been tried at the same time. But the plaintiff’s credits to the defendant, in his account, could not be used as evidence against the defendant’s account, filed in set-off for the same subject matter. This is clear in principle ; and it seems to have been settled in Summers vs. McKim, 12 Serg. if Rawle 405, that where the plaintiffgoesonhis original entries, the defendant will not be allowed to give in evidence his own counter entries of the same work. See the case cited in 2 Cowen & Hill’s Phil. Ev. 693. The rule does not extend so far as to authorize the use of his book, by a party, to curtail or defend the claims of other parties against him.
It is not a sufficient objection' to the introduction of the book and oath, as evidence, that the subject matter of the entry may have been done, delivered, or received, under a special contract. Such entries are proof of the use of any thing hired and returned, respecting which there is often a special contract for time and price. And see other cases collected 2 Cowen & Hill 692.
It is settled that where labor is performed, materials furnished, &c., under a special contract, and the contract is fully performed, so that the money is due, and nothing remains to be done but to make payment, the party is not obliged to declare upon the contract, but may sustain an action upon the general counts. Bull. N. P. 139; Roscoe’s Evid. 221; 3 Stark. Ev. 1762. The principle is applicable to our form of action upon an account annexed to the writ, which is but a general count for goods, labor, or whatever else may form
It will be understood, of course, that there are divers matters, resting upon special contract, which do not furnish the proper subject matter of a charge in account; as, for instance, a contract to pay the debt of another, which not only warrants no charge upon book, but comes within the statute of frauds requiring the promise to be in writing.
The defendant farther objects, that he was not permitted to show that the plaintiff was of intemperate habits, in order to rebut in some degree the conclusions which might otherwise be drawn from the evidence that the plaintiff was a skillful workman. We are of opinion that this exception is well taken.
A doubt has been suggested whether the evidence to show the plaintiff to be a person of skill in his trade, was rightly admitted; but we perceive no valid objection to that evidence. The labor of a skillful workman is of more value than that of one who has little experience in any particular trade or business, and entitles him to a higher compensation. And if the amount which he claims to recover for his services be contested, he may surely show that he has the necessary skill and experience, to increase the value which should be placed upon his services.
And on the other hand, evidence of habitual intemperance has a tendency, greater or less, to rebut the evidence
If intemperance tends to produce irritability of the nervous system, weaken the muscular action, and impair the mental faculties, — all which is controverted by few at the present day, — evidence of its existence in any particular case certainly has a tendency to show that the labor and services of the subject of it are of less value, other tilings being equal, than those of one whose system is not thus affected. The weight of the evidence must depend upon the degree of the excess, and the particular circumstances of the case. It is sufficient here that the evidence is competent for the purpose for which it was offered.
Neiv trial granted.
