Hitt v. Slocum

37 Vt. 524 | Vt. | 1865

Aldis, J.

1. The receipt did not purport to he a written statement of the agreement of the parties as to the settlement. It was only an acknowledgment of the receipt of the Osborn note to apply on account. Standing alone it would not tend to show a settlement, but the contrary, and as evidence tending to disprove a settlement it was admissible for the plaintiff. But receipts not under seal are always open to explanation, and even to contradiction, by parol evidence. They are not contracts, so as to be the exclusive evidence of the intention of the parties. Nye v. Kellam, 18 Vt. 594; McDaniels v. Lapham et al., 21 Vt. 222 ; Sparhawk v. Adm’r of Buell et al., 9 Vt. 41; Burnap v. Partridge, 3 Vt. 144; Hutchins et al. v. Olcutt, 4 Vt. 549.

The ease shows that the agreement of the parties in regard to a settlement, if there was any, was not reduced to writing. It was clearly proper therefore to receive parol proof to show a settlement.

2. It is said the auditor should have reported the facts in regard to the settlement, or the evidence of it.

It would have been improper for the auditor to have reported the evidence. His report should state only the facts which he finds from the evidence.

He does find and sets forth the settlement, and states it so fully as to show that it included the matters for which the plaintiff now sues.

3. It is further urged by the plaintiff, that the question put to the witnesses on the trial, viz : “What is the character of the plaintiff in the community where you reside for fairness and correctness as a book-keeper”, was improper.

The credit of account books depends upon their being a daily record of the business transactions of the party who produces them — of the entries being made cotemporaneously With the transaction of the business — of their appearing to be kept so that the entries are made in the order of time, without blanks or spaces being left in which false charges might be written, — in being honestly and fairly kept, free from erasures, alterations or other signs of fraudulent practice. A dishonest man may keep fair books, upon the face of which everything appeats honest and correct, and yet continually insert false charges. How shall this be made to appear? Ordinarily no one can be supposed to know this but the person who has been defrauded by such practices, — who has seen the books, the false charges, and knows that they are false. The public generally would know nothing about it and have no means of knowledge. The honesty and accuracy of a man’s account books do not lie open to the world like his character for truth. That appears constantly before men — is tested by daily intercourse and conversations with his neighbors, and hence his reputation among his neighbors in this respect is admitted as evidence of what his real character is.

But to extend this rule of law to a man’s reputation for keeping honest and correct books of account would be going farther than the reason of the rule, or any correct practice in the courts would justify.

No authorities have been cited to sustain the admission of such evidence ■; nor are we aware that there has been any practice to support it.

The consideration of this point is not necessary to the decision of the case, as the fact of settlement defeats the action. But as the point was argued on the hearing we have thought it proper to make these intimations in regard to it.

Judgment affirmed.