27 Mo. 568 | Mo. | 1858
delivered the opinion of the court.
This action was brought to recover a blacksmith’s account of some five 'years’ standing, amounting altogether during that period to $183.25, and with credits to the amount of $86 — leaving a balance claimed of $97.25. The principal question presented here is as to the admissibility of the evidence which the circuit court permitted to go to the jury and upon which the verdict was rendered. This evidence was, that the plaintiff kept his own books and kept them generally correctly; that Meyers had all his blacksmith’s work done at plaintiff’s shop; that Meyers’ farm was of a particular extent; that he employed a particular number of horses and wagons; and other testimony of this character, which, together with positive proof of various items identified particularly by different witnesses, went to the jury.
It is very certain that, if testimony of this character is not allowed, very few of such accounts can be proved in this State. Many farmers own shops entirely under the superintendence of a negro blacksmith. The business is one which, in the country and in small interior villages, does not justify the employment of a clerk, and the items in such accounts are frequently so trivial that it would be unreasonable to expect positive and direct proof. These circumstances will not, it is true, authorize the courts to disregard any settled rule of evidence; but the testimony in this case is certainly competent, and of its pertinency the jury could judge. A jury of practical men would not be likely to go much out of the
The plaintiff’s books of account were not offered in evidence. The testimony as to how they were kept was necessary to explain and account to the jury for their absence. If they had been kept by a clerk, it might have been expected that he should have been called and the books produced. As our practice does not allow their introduction when kept by the plaintiff, proof of this fact was material and pertinent.
As to the weight of evidence in this case, it is not our province to interfere; but if we were to pass any opinion upon the point, we could not say that $183 was an unreasonable blacksmith’s account for five years for a man in Meyers’ circumstances.
It does not appear that the preliminary oath, required by the statute to authorize allowances against an estate in the county court, was called for in the trial of this case, or that any objection was made on this ground. After a plaintiff has established his demand, contested as this was, by the verdict of a jury and the judgment of the circuit court thereon, it would seem folly to send the case back for the plaintiff’s oath to be superadded.
The other judges concurring, the judgment is affirmed.