35 Vt. 195 | Vt. | 1862
This was an action oh a promissory note for $1000, dated April 5th, 1853. The only question litigated before the jury was as to the amount of payments made by the defendant on the note. It appears that some payments were endorsed upon the note, about which there was no dispute. But the defendant claimed and testified that he personally paid to the plaiutiff $150, on the 20th November, 1853, at the tavern at Danby Borough, and the further sum of $200, on the 15th December, 1853, at the Union Store in the same village, both to apply on the note in suit. The plaintiff denied these payments, and testified in substance that no such payments were made. It appears that two other notes for $1000 each were given at'the same time the note in suit was executed, which had been paid from time to time and taken up. All these notes were executed by the defendant to John Y. Lapham, and before paymént were transferred to the plaintiff, to whom all the payments were made. The defendant testified.that when the payments on each of the notes were made, he kept a pass-book, which was the book, and
This book was offered in evideuce by the defendant as independent evidence to show these payments, and on objection by the plaintiff it was excluded by the court as independent evidence, to which decision the defendant excepted. The court, however, admitted the book as a memorandum made and kept by the defendant, to which he might refer for the purpose of refreshing his memory, and it was treated, as the exceptions state, as being in the case for that purpose. From this we understand the book was treated as evidence, and went to the jury with the other evidence in the case. This seems to be conceded by the defendant’s counsel; at least as far as this, that it went to the jury. But the court decided in thus admitting the book that it was not independent evidence. This decision we think was correct. On inspection of the book, considering the character and purpose of the entries and the defendant’s testimony, the book, in the opinion of the court, is not such a book kept in the regular course of business, as to be admissible as evidence per se, independent of the testimony of the party tending to prove the correctness of the entries of the transaction in dispute; especially as the entries’ are not entries of a transaction creating an indebtedness, like the sale of goods, the performance of services, regularly charged on the book of accounts of the party, but a memorandum of a payment made upon anote in discharge of a debt. vThe entries must be regarded as in the character of a private memorandum, made to preserve the facts in the recollection of the witness. In such cases the entry or memorandum is not independent evidence; it can in general only be used to refresh the recollection of the witness, or as confirmatory of his testimony. The light in which such memoranda are to be regarded, the purpose for which they are to be used, under what circumstances and to what extent
2. There is an exception taken by the defendant to the ruling of the court in relation to the $23.00 which he claimed to have allowed as. a payment. The court charged the jury as to this item, that if the facts were as the defendant’s evidence tended to prove, he could not avail himself of it as a payment, as it would entitle him to maintain an action upon it. If the evidence had any tendency to show any agreement or understanding between the parties, either at the time of, or subsequent to, the receipt of the $23.00, that it should apply upon the note in suit, this instruction was erroneous. In our opinion it had such tendency. The three notes given at the same time constitute substantially .one debt. It was agreed between the parties that the defendant might at any time pay any sum not less than $100, to apply on either of the notes. He paid from time to time until about the 11th November, 1353, as the evidence tended to show, when he made a payment and took up the^other two notes. At this time there was an over payment of $23,00. There was a dispute between the parties whether this sum had been subsequently applied on this note and included in one of the endorsements. It is termed an overpayment, but it is not shown to have been an overpaymeht by mistake. If it was simply a payment of so much more than the amount due on the other two notes, it is open to the inference that the surplus was mutually expected to be applied on this note. This is rendered the more probable from the fact that the plaintiff claimed before the trial and on trial that he had so applied it. The judgment must therefore be
The judgment of the county court is reversed, and as the plaintiff elects to remit the $28.00, judgment is rendered for the plaintiff with that deduction,