34 Iowa 123 | Iowa | 1871
III. The book is not admissible for the purpose of establishing the claim made; section 3999 of the Revision reads as follows: “ Books of account containing charges by one party against the other, made in the ordinary course of business, are receivable in evidence, only under the following circumstances, subject to all just exceptions as to their credibility.” Under the English law a party’s books are not admissible in evidence for him, but are regarded as hearsay of his own fabrication.
Under the general current.of American decisions, they are admitted upon the ground of necessity, and upon the presumption that unless they be received, there will be a total failure of proof. In Cowen and Hill’s notes to Phillips on Evidence, page 306, it is said: “We are then to look and see to what class of dealing the law has privia facie ascribed a destitution of the ordinary means of proof; and we shall find a general concurrence among the. several statutes, adjudications and dicta, in pointing to the daily
“ The party offering the books must prove what his ordinary business is, and the jury, under the direction of the court, are to allow or disallow the chai’ges made, according to the credit they may attach to the books, and according as it may be determined whether the charges are, or are npt, made in the ordinary course of business. Vieths v. Hagge, 8 Iowa, 163.
The charges of date March 13, 1868, consist of fifteen items, amounting in all to $810.70. One of them is as follows: “ Charles Karr, Dr. to one-half M. C. R. R. Co., bill, $337.95.” And the others are of like import. Now clearly this is not prima facie, in the ordinary course of business. And there is no explanation of the business or relation of the parties from which it can be determined that in this particular case the entries were according to the usual course of business. If the plaintiff and Charles C. Karr were partners, and these bills were paid by plaintiff on account of the firm, the usual charge would be against the firm for the amount paid. And the same is true of the charges of date November 9, 1867, for one-half of the various articles enumerated. The plaintiff should have shown the course of dealing, from which it
The third item of account, “ To one-half Memphis City R. R. Co. account for $2,475.25, put in note December 31, 1867, at 6 per cent,” is clearly not within any of the rules rendering a booh of account admissible for its proof. See Vieths v. Hagge, 8 Iowa, 163, and cases cited. Hart v. Livingston, 29 id. 217, and cases cited.
That the fourth item of account, “ To 4 months work, from November 14, 1867, to March 14, 1868, at $75.00 per month, $300.00,” cannot be proved by an entry in the party’s book, see Henshaw v. Davis, 5 Cush. 155, where the point is precisely ruled.
Affirmed.