Grady v. Thigpin

6 Fla. 668 | Fla. | 1856

I3ALTZELL, C. J.,

delivered the opinion of the Court.

On the trial of this case in the Court below, the plaintiff, administrator of Labatut, offered to read to the Jury, a book of entries as- evidence to which defendant objected. Thereupon plaintiff introduced Jacob Lind as a witness, who testified that he had been clerk of plaintiff, deceased; that to the best of his knowledge, he kept correct books; that the book offered in evidence was the only book-kept by him ; that when goods were sold by the witness oi‘ plaintiff, they were entered on a slate kept for that purpose ; that entries so made on the slate were transcribed by plain tiff, deceased, to the book offered in evidence. That sometimes the entries were made from the slate into the book on the same day. Sometimes the eutries were not transcribed into the book from the slate for two or three days, and sometimes four days had elapsed. That he made but few entries in the book from the slate himself, not oftener than four or five times. The Court permitted the book to be read in evidence, and defendant excepted. The entries read in evidence to the Jury are as follows :

O. Grady to 0 labitut, Dr.

July 8th, 1853, To date,....................$ 3 75

Peck Onions, 100 lbs. Sugar,.... 9 05

I gal. Lard Oil and Molasses,.... 2 05

Liquor bill,..................1 80

Aug. 5—2 Chickens, Cognac,..............1 35

6—Potatoes,........ 55

18—Tea, 12 Chickens,................4 35

Sept. 13—J doz. Chickens,.................1 50'

barrel Plour,..................4 25

30—Molasses and Lard,........ 1 65

Onions,..........................25

Oct. 3—Liquor bill, 28th Aug.,.........12 20

8—Tea and Salt, 33, beef,............4 28

13—Callaghan’s order,...............7 50

10 lbs. meat,....... 84

3—J gal. Molasses,...................20

Liquor bill, Cigars,.........,..18 05

74 12

Rec’d payment, 7 50

$66 62

In Hooker vs. Johnson, decided at the recent session of this court at Tampa, it was held that “ the relaxed rule as to the introduction of book accounts, in operation in our sister States, with the restrictions and qualifications attached thereto, should prevail here.” Tested by these rules, there seems to he little objection to the evidence on account of the transfer from a slate.—1 Greenleaf, p. 155, n.; 13th Mass., 427; 6th Whart., 189.

There is greater difficulty as to the time that should elapse for the transfer, and there is not an entire agreement in this respect as to a precise time. It is enough, say some of the authorities, that it be made “ at or near the time of the transaction.’*—1 Greenleaf, 138, n. 1; 9 S. & R., 3, 5.

The books should he kept for the purpose and contemporaneous with the delivery of the goods. Not registers of a past transaction, but memorandums of transactions as they occur.—Greenleaf Ev., 137-9, n. 1.

Again, it is said “it suffices if it be within a reasonable time, so that it may appear to have taken place while the memory of the fact was recent or the source from which knowledge of it was derived was unimpaired.”—3 Watts, 325.

“ When the entries were made at night or the following morning from the memorandum, it was held sufficient.”— 9 S. & R., 285.

Sickles vs. Mather, 20th Wend., 72, has been quoted to the effect that two or three days was held sufficient, but we have not had access to the book containing a report of the case. An interval of one day between the transaction ánd the entry of it has been deemed a valid objection.—8 Watts, 344.

There may he cases in which a greater time might be allowed than is even claimed here. This will depend upon • circumstances. We see no reason or propriety in allow* ing a period beyond the day after the sale. This account is by a shop-keeper engaged in the sale of groceries, &c., in a town, which may be supposed to be his sole occupation. What is to prevent entries of sales by him on the same day, or, at the furthest, on the day after. To allow four days in accounts of this character would seem to be an invitation to looseness and irregularity in dealing, if not a direct encouragement to fraud. We hold, then, that the book should have been rejected, and not permitted to be read in evidence. Were the account admissible in the respects just stated, there are other grounds of objection to the greater part.of it. The charges are very vague and indefinite—by no means precise—giving neither quantity, quality nor value, but accumulating items with the price in the aggregate. Scarcely an entry is free from this objection.

The judgment of the Circuit Court will then be reversed, and the cause remanded for a new trial to be had not inconsistent with this opinion.