16 Wend. 586 | N.Y. Sup. Ct. | 1837
After such an exact tacit adherence, on the side of the plaintiffs, as appears from the evidence in this case, to the written terms of the contracts, without one word that they intended to alter their rates of charge, it would be a fraud upon the company were they allowed to change their ground. It is not denied that they may resort to the general counts. Both parties having assented that the work should go forward after the day, that may be so. It is clearly so as to line C. and section 4, if
I have so far supposed all delay and embarrassment to have been the result of misfortune ; of oversight, miscalculation, or want of fore cast in one party or the other, or both; want of skill, if you please, in the conduct of business, and I care not on which side. But there is another view of
I apprehend, however, that the cause must go back to the referees and be re-heard, for an error committed by'them in the admission of the kind of evidence by which they appear to have governed themselves in fixing the amount of labor. Finding that the estimates of the engineer in chief had be
Such was substantially the account of these check-rolls when they were offered to, and indiscriminately received, by the referees ; and by what I collect from the case, formed about the only guide in fixing the amount of labor. The. affidavit of the defendant’s counsel says, “ The plaintiffs offered the check-roll books in evidence, to prove the amount of labor performed, which was objected to by the defendants’ counsel, but admitted by the referees.” The answering affidavit of the attorney for the plaintiffs says, that “ No objection was made by the defendant’s counsel, either to the competency or sufficiency of the proof of the plaintiff’s check-rolls shewing the amount of labor done by them on the rail road.” This is true according to the affidavit of the defendant’s counsel. He does not state that he made difficulty as to the proof of the plaintiff’s check-rolls. In fairness of construction, the defendant’s objection was, that though the rolls were well enough proved and identified, yet, still they were not competent evidence for the purpose for which they were offered. I at first thought the opposing affidavit was disingenuous and evasive. Such a bad moral aspect may be removed by supposing that it intended to raise the question, whether the objection was sufficiently specific. It might have been more so. It might have said, “ You have not rendered a sufficient account of these memoranda to make them evidence. You should have called every body concerned in making them up, or account for the absence of those persons by showing that they were dead, or at least, beyond the reach of pro
Were these rolls evidence ? They were doubtless as nearly safe as was necessary for business purposes at the time; perhaps as producing strong moral conviction on the minds of men under any circumstances. But are such memoranda to be received in evidence in our courts of justice 1 They would have been legally admissible as books of account between the plaintiffs and their workmen; for they were adopted as the books of both, and kept open for the inspection of each. They are like partners’ books between themselves. Heart v. Corning, 3 Paige, 566. Fletcher v. Pollard, 2 Hen. & Munf. 544, 549, 550. Brickhouse v. Hunter, 4 id. 363. Jordan v. White, 4 Martin’s Lou. R. N. S. 335, 339. Reno v. Crane, 2 Blackf. 217. The superintendents or others making the entries, were agents for both parties. Union Bank v. Knapp, 3 Pick. 96, 108. But not so as to the defendants. They were not admissible as books of account kept by one dealer with an
If then these rolls were receivable at all, it must be on the ground that they were original entries made in the usual course of business. These, unless the person himself who made the entries, is produced, are not evidence; but they may be received where he is dead. This is the English rule of several cases grounded on Price v. Lord Torring
Then were these rolls proved as the original entries of living persons, present to verify them, and testifying that they were made by them, and that they believed them to be true 1 This would have entitled them to be read as evidence, even though the witnesses might have forgotten the transactions which they recorded. That seems to be the established general rule as to an original entry, though it has been restricted, in this state, to entries in the course of business. In Sandwell v. Sandwell, 2 Comb. 445, in 9 Wm. III., at nisi prius, in proving words of slander, Holt, C. J., said, “ Where a witness swears to a matter, he is not to read a paper for evidence, though he may look upon it
There is an obscurity in the text of Phillipps’ Evidence, one of our best books, running through all his editions, arising from a failure to distinguish between original memoranda and copies or extracts. The attention of the learned constitutional court of South Carolina was drawn to this subject, in The State v. Rawls, 2 Nott & M’Cord, 334. Nott, J., says, “ It is true that Phillipps, in his treatise on Evidence, says that1 a witness, to assist his memory, may use a written entry or memorandum, or the copy of a memorandum, and if he afterward can swear positively to the truth of the facts there stated, such evidence will be sufficient; yet if he cannot from recollection speak to the fact any farther than as finding it stated in a written entry, his testimony will amount to nothing.’ But by a reference to the cases quoted by Phillipps, it will be found that the rule as laid down by him applies only to copies of entries, and not to the original. The principal cases relied on are Doe v. Perkins, 3 D. & E. 752, and Tanner v. Taylor, a manuscript report of which Mr. Justice Buller read in that case. The case of Tanner v. Taylor was an action for goods
A great variety of American cases have arisen where the witness, having made the entry or memorandum, could swear to his belief of its-íruth, but had entirely forgotten the facts which he recorded, in which the paper thus attested has been received and read in evidence to a jury. A memorandum in respect to á gambling transaction was so received against a criminal. The State v. Rawls, before cited. Nott, J., as I noticed before of Bayley, J ., likens it, in this case, to the forgetting of an attestation, or to a clerk forgetting entries in a merchant’s book. So the notes of evidence by counsel were received, though he could not remember the facts. Rogers v. Burton, Peck, 108, 109, 118. Clark v. Vorce, 15 Wendell, 193. The entry of a bank clerk, who had forgotten the fact, Farmers’ and Mechanics’ Bank v. Boraef, 1 Rawle, 152 ; of a notary’s clerk, who had forgotten the fact he had entered of notice to an endorser, Haig v. Newton, 1 Rep. Const. Court, 423, 4; of a town clerk,
But to make the memorandum or entry competent evidence, the witness must make the entries himself, Glover v. Hunnewell, 6 Pick. 222, though this rule is not without its exceptions. Where some of the entries were made by the witness and some by the party, it was held that the evidence should be confined to the witness’ own entries, unless he knew the facts set down by the party, and read them over shortly after the transaction, Beddo v. Smith, 1 Ala. R. 397, 8. And where a tradesman’s clerk entered all goods sold in a waste-book, from his own knowledge, which the tradesman, the plaintiff, copied day by day into the ledger, in presence of the clerk, who checked them as they were copied, the clerk was allowed to use the ledger as an original book— otherwise, said Patteson, J., the original or waste-book should be produced. He put the production of the original on the legal rule which requires the best evidence. Burton v. Plummer, 2 Adolph. & Ellis, 341. Denman, C. J., said the entries were copied while the transactions were yet fresh in the clerk’s memory. Id. Great care istaken by
To return to the case at bar : I collect from the affidavits in the first place, that a considerable share of the entries on the check rolls were made by the plaintiffs ; and such as were, do not appear to have been read by witnesses who knew of the facts entered, immediately after they-were set down ; but be that as it may, they have always been under the control of the plaintiffs, and open to fraudulent interpolation? The place of the custody of such insulated memoranda is scanned very closely by many cases. The propriety of this is too obvious to need the support of authority. Besides, not being receivable, as we have seen, in the light of general book accounts of the party, nor, on the same ground as the entries of large and indifferent commercial houses employing many clerks, but coming in and claiming credit upon the footing of simple original entries, it should have appeared that every source of primary evidence had been exhausted. All those who made the entries should have been produced, or it should have been shown that they were dead. Neither appears to have been done. As far as our cases have gone, they confine the excuse for the non-production to the death of the witness, though Massachusetts has received permanent insanity as an equivalent, Union Bank v. Knapp, 3 Pick. 96, and South Carolina a permanent absence from the state, Elms v. Cheves, 2 M’Cord, 350; Tunno v. Rogers, 1 Bay, 480.
On the whole, I think the referees in this case exceeded
Report set aside.