76 Cal. 87 | Cal. | 1888
This is an action for the recovery of the possession of a certain tract of land.
At the trial of the present action the plaintiff, grantee of Patterson, as evidence that Sanford had not complied with his agreement by paying the full sum of $3,336 and interest, introduced “the account-book of Patterson of the Gorralitos rancho, wherein the accounts of Sanford and others with Patterson were kept by Patterson, and all the entries therein were made by and in the handwriting of one Hanna, who was Patterson’s bookkeeper at the time.” The objections of the defendant were overruled, and the plaintiff put in evidence the following entries from the book: —
La Motte.
A. P. Saneoed,
In account with Gorralitos Rancho.
1867, Oct. 25. To purchase of 240.60 acres..... $3,336
Oct. 25. By exchange of land............ 500
1868, Dec. 19. By cash on account............. 500
1871, May 20. By cash on account............. 200
The non-payment of moneys to be paid by Sanford upon the contract of purchase was a fact of a nature to be proved by the usual evidence of it. The performance or non-performance of such a specific agreement is
Patterson had a clerk. The entries were made by Hanna, Patterson’s book-keeper. And although, as shown by the statement on motion for new trial, Hanna was examined as a witness, it does not appear that he was questioned with respect to the entries; that he testified that they were made at the date of the transactions they purport to record, or that the entries he made were correct of his knowledge when he made them. Nor was it shown that the book was a book of original entries.
The offer of the book was an attempt to establish a negative, favorable to the cause of the plaintiff, by affirmative declarations of a third person, when it appeared such third person was within the jurisdiction and actually present at the trial. It was an attempt to establish that some money was not paid by what was claimed to be evidence that other money was paid. But the evidence offered to prove the fact, from which the inference of the other fact was to be drawn,— whether the mere offer would or would not estop the plaintiff,—was not such as was admissible against the
Judgment and order reversed, and cause remanded for a new trial.
Searls, G. J., and Paterson, J., concurred.
Hearing in Bank denied.