Greene v. Mills' Estate

60 Vt. 440 | Vt. | 1888

The opinion of the court was delivered by

Tyler, J.

Section 1004 of the Revised Laws provides that: “Inactions of book account and when the matter in issue and on trial is proper matter of book account, the party living may be a witness in his own favor so far as to prove in whose handwriting his charges are and when made.” * * *

In the case of Hunter v. Kittridge’s Estate, 41 Vt. 359, which is relied upon by counsel on both sides of this case, the auditor erroneously decided, as matter of law, that the production of the books of account of the dsceased, with proof of the handwriting of the charges therein, and when made, was prima facie evidence ofthe correctness of the charges and , of a subsisting indebtedness.

In this case the auditor reports that the plaintiffs presented their account, that upon this testimony he found the account was correct and ought to be allowed, and that he accordingly allowed it. He then states what the evidence was, upon which he allowed it; namely, the plaintiffs’ day-book, upon which the items contained in said account were originally written, which book appeared to have been regularly kept and the items of the account to have been regularly entered thereon to the debit of the deceased at the time of their respective dates, with proof that the handwriting was that of a clerk of the plaintiffs, and that the charges were made at the time of their respective dates ; also, that the plaintiffs put in evidence two ledgers containing the amount in question transferred thereto from said day-book. He adds that there was no .other evidence in the case in support of the plaintiffs’ claim except some slightly corroborative circumstances. It is clear from the whole report that the auditor found as a fact from the evidence that the goods were sold and delivered by the plaintiffs to the deceased, in his lifetime, as charged in said book. It is true that by request of the defendant the auditor states “ that in his consideration of the case he was of the opinion that said account-books, with the testimony of E. G. Greene, above recited, were alone legally sufficient, if uncontradicted, to sustain the plaintiffs’, claim”; but in view of what he had before stated in his report, he evidently meant by this, statement that he felt legally warranted, upon this evidence alone, in finding for the plaintiffs to recover the amount of their account..

In this class of actions, accounts on books, accompanied with proof of the handwriting and when made, are always regarded as evidence, are in fact made evidence by statute, and are entitled to some weight as testimony to show a sale and delivery of the goods sought to be recovered for. How much weight they should receive, whether or not they are sufficient to make a prima facie case for the plaintiff, must rest' wholly in the judgment of the triers of the fact. Certainly no rule of law could be laid down by which their weight could be determined. The case of Bacon v. Vaughn, 34 Vt. 73, and Hunter v. Kittridge’s Estate, above cited, are both full authorities on this point.

The auditor properly received this evidence, and his decision as to its sufficiency to entitle the plaintiffs to recover is conclusive. The judgment of the County Court is therefore affirmed.