30 N.Y. 497 | NY | 1864
Lead Opinion
The only question made is whether the referee decided correctly in admitting the books in evidence on the part of the plaintiffs. This point would seem to have been distinctly disposed of by this court. In the case of Low v. Payne (4 Coms. 247), the court said: The rule undoubtedly is that the private entry of the party himself, in his favor, is not available to sustain a charge for cash lent, but only those entries which are made in the regular and usual course of his business. In that case, however, the books comprise a series of entries made in the usual course of business, in the midst of which, at considerable distances apart, are the two exceptionable items. The defendant made no proof, but would appropriate to himself the benefit of the credits appearing in his favor, upon the same books, while he denies to the plaintiff the full benefit of all his charges. The court below were right in the position held by them, that if the defendant would make the books evidence in his favor, he can not do so without taking the whole account together. The accounts are received in that case in like manner as the oral admissions of the party, the whole of which, or none, must be received. The defendant is precluded by it, unless he wholly disproves the items. In the case at bar the defendant availed himself of the plaintiffs' books, to establish certain credits in his favor. Clearly the plaintiff was at liberty to use the same books to show the amount of charges against the defendant, also contained therein. He can not use the books to establish credits in his favor, and uno flatu deny to the plaintiff the full benefit of the charges therein against him. He must take the whole or none, and having elected to put the books in evidence for his benefit, he can not be now permitted to deny the plaintiff the benefit of any charges therein in his favor.
In Pendleton v. Weed (
No inquiry was or could have properly been made as to the handwriting of the entries in the plaintiffs' books put in evidence by the defendant. The inquiry would have been quite immaterial, as they did not derive their character as evidence from that circumstance, but from the fact that they were found in the books of the plaintiffs in the regular course of their business, and were, therefore, to be deemed and regarded as the acts and admissions of the plaintiffs themselves. It was of no importance, therefore, that the entries offered in evidence by the plaintiffs were in the handwriting of one of the plaintiffs. They were admissible, on the ground that the defendant had put in evidence a portion of the admissions made by the plaintiffs which were favorable to him, and it followed from thence that the plaintiffs were entitled to put in the residue which favored their views. It was wholly unimportant, whether the whole or any portion of the entries were in the hand-writing of the plaintiffs, or either of them. The judgment appealed from should be affirmed. *502
Concurrence Opinion
The plaintiffs' account books, it is conceded, were properly in evidence. In connection with the oral testimony of the clerks, they established the larger part of the plaintiffs' claim. Being in evidence, the defendant availed himself of them to prove thereby credits in his own favor. These were equally well established, whether they were in the plaintiffs' handwriting or not. The plaintiffs' had brought them forward as their books, claiming for them authenticity and credit, and could not deny their admissibility and force, even when they operated against themselves.
In using them for his purpose, the defendant apparently travelled over their entire contents, selecting his items wherever he pleased, without reference to dates or subject matter, or their connection or relation to the charges read by the plaintiffs. Thus he selected from the day books three different items, each of considerable amount, of the respective dates of May 2d 1848, March 22d 1849, and October 27th, 1849. He selected from the cash book eight different items, ranging between the dates of July 21st, 1848, and November 19th, 1851. He had therefore used the whole of the books indifferently for his purpose. He had taken the entire account between the plaintiffs and the defendant, adopted it for his own benefit, and was not, I think, at liberty to renounce it where it made against him. The books constituted one entire series of accounts between these parties, and, for the purposes of this case, may be regarded as if they contained nothing else whatever — indeed, as if they had all been presented in court by the plaintiffs on a single paper or account current. In such case could the defendant be permitted to cull particular entries from the account and exclude the residue? I think not.
The rule that a party whose oral declarations, in a conversation are improved in evidence by his adversary, is not thereby permitted to introduce in his own favor disconnected portions of the same conversation having reference *503 to distinct and independent matters, has no close application to such a case.
1st. Because the account must be regarded as the single, entire and continuous statement of the party offering it — presenting his version of the true state of the business transactions between the parties — not necessarily entitled to credit in every part, if discredited by other evidence, but admissible for the consideration of the jury.
2d. Because the defendant, having adopted the whole statement by ranging through its entire scope and contents, has given currency to the whole, and has made it necessary to examine and take in the whole, in order to determine how far the portions rejected by him bear upon, affect or qualify the portions selected. There is no evidence that the portions of the account introduced by the plaintiff, after those introduced by the defendant, do not materially qualify the effect of the latter items, and do not in fact relate to the same precise subject matter. And we may presume it to be so, as we can make no intendment against the propriety of the ruling in the court below.
This court has, in substance, affirmed the propriety of this evidence. In Low v. Payne (4 Comst. 248), the plaintiffs' books (properly established by preliminary proof), constituted the only evidence. They contained credits which the defendant insisted upon the benefit of, and the court held him thereby compelled to submit to two charges of cash paid contained in the books, though not properly items of book account. In Pendleton
v. Weed (
If it be said this last authority shows that the entries in the different books related to the same subject matter, to wit: the question of payment of a particular judgment, I reply that in this case, the subject matter is the state of the entireaccount between the parties. The parties had made it so by their mode of using the books. The plaintiffs had made the books evidence for themselves of all matters of accounts between the parties. The defendants had selected indifferently and indiscriminately from the mass of materials thus presented to them, all which they supposed tended to their advantage, without reference to their continuity or connection with those proved by the plaintiff. The entire books, with all their entries, had thus come legitimately before the court by the mutual assent of the parties, and they were permitted to cull from them at their pleasure. If we were disposed to take a stricter view of the rights of the parties, there is no evidence that the plaintiffs introduced a single item subsequent to those introduced by the defendant.
If these views are correct, the judgment should be affirmed. If they are not so, the judgment should not be reversed, but corrected by deducting therefrom the items illegally admitted, amounting to $137.49.
Judgment affirmed. *505