48 Pa. 22 | Pa. | 1864
The opinion of the court was delivered, by
— The plaintiffs sued in the court below to recover for services alleged to have been rendered by their testator as an attorney for Dr. Ard, the testator of the defendants. The evidence by which the claim was supported was the book of Mr. Hale, containing, as was alleged, original entries made by himself. The account commenced on the 15th February 1849, and closed on the 15th of May 1860. Among other charges contained in it were the following: “ May 24th 1852. Cash item, $100, 5 per cent, on same, $5.” “ 1856, February 5th. To going to your house at your request, per T. Keagy, $10,” and “ May 16th 1860. To fee in equity proceedings, Souder v. Lapsley, seeing Judge Cadwalader and examining papers, and going to your house, $10.” These entries were rejected by the court, and their exclusion is now assigned for error. But it was plainly right. None of the entries were such as the law admits to be evidence of indebtedness to the person who made them. Books of original entries are evidence to prove a claim for goods sold and services rendered, if made in the regular course of business, but as they are evidence made by a party for himself, and very often incapable of being tested by other proof, they are to be guardedly received, and received only to prove a sale and delivery, or labour for the alleged debtor, for which the law implies a promise to pay. Cash is not, therefore, a proper subject of book charge, neither is interest or commission on cash. In this case the entry of 5 per cent, does not show whether the charge was for services, or interest or commissions. And the charge for visiting defendant’s house at the request of T. Keagy, is insuffi
The defence set up against the plaintiff’s claim was mainly the Statute of Limitations, and it was to take out of the statute the whole or certain items of the account that the plaintiffs offered other evidence which was also rejected. Among other things it was proposed to give in evidence the record of a suit brought by Harrison against Ard, Milliken, and Alexander, to August Term 3853, which suit is still pending. The avowed purpose was to show, that Mr. Hale was the general legal adviser of Dr. Ard from 1849 to 1860; and also to show that the statute did not apply to one item in the account entered thus: “1853, June 5, to going to your house, and counsel in regard to claim of Harrison v. Ard, Milliken, and Alexander.” The suit had not been
The same reasons justify the rejection of the offered testimony of Dr. A. S. Cummings, and Dr. Ard’s will, as well as the charge of the court. The instruction given to the iury was entirely accurate.
It was also right to give judgment without costs. The plaintiffs recovered less than $100, and they filed no affidavit when the suit was brought. The defence was not defalcation, and the verdict shows that only $37.20 was due by the defendants when suit was brought.' The plaintiffs’ case is therefore strictly within the letter and spirit of the Act of Assembly. The account upon which the action was founded on its face showed that there could be no recovery of a sum not within a justice’s jurisdiction; and if there was evidence to take the case out of the operation of the Statute of Limitations, or supposed to be sufficient, the right course was to make the affidavit required by the statute.
Judgment affirmed.