107 Mass. 272 | Mass. | 1871
It has often been decided that charges in a book of accounts are not written contracts, but the private memoranda of the party, and as such open to explanation. James v. Spaulding, 4 Gray, 451. Banfield v. Whipple, 10 Allen, 27. The plaintiff therefore had a right to account for the fact that the books appeared to be kept in the name of himself and another person, by showing that an intended partnership with that person had never gone into effect, and that he was himself the sole owner of the goods, charged in the account. Burton had never fulfilled the condition on which he was to become a partner with the plaintiff, and according to the terms of their agreement was merely the plaintiff’s clerk. The action is therefore rightly prosecuted in the name of Langdon alone.
The defendant, for a valuable and sufficient consideration, had assumed upon himself, by his contract with his sons, the payment of their debt to the plaintiff. The case finds that the plaintiff with the knowledge and at the request of the defendant, cancelled the charge against them by transferring the entire account to the defendant’s account. By substituting himself in their place in
Judgment for the larger sum.