41 Miss. 74 | Miss. | 1866
delivered the opinion of the court.
This was an action of assumpsit on an open account for goods sold and delivered. A verdict having been found for the plaintiffs, the defendant moved for a new trial on the ground that the verdict was contrary to law and evidence, and the instructions of the court. This motion being overruled, the defendant below brings this writ of error, and assigns for error : 1. The refusal of the court to grant a new trial; and 2. That the instructions given for the plaintiffs were erroneous.
The bill of exceptions shows that Ruelier, a witness for the plaintiffs, testified that he acted as clerk for them during the years 1858 and 1859; that he had compared the accounts sued on with the books, and found that they corresponded, and were
The defendant testified that he supposed he was owing plaintiffs some $300 or $400; that what was said by witness Rueher about the pass-book was true. He had made search for the pass-book, but was unable to find it.
In an action for goods sold and delivered, it is of course incumbent upon the plaintiff to prove by legal evidence, to the satisfaction of the jury, the sale and delivery of the goods, and their price or value. Obviously the best and most satisfactory testimony for this purpose is that of witnesses, either the party himself, or his clerks or employees, by whom the goods were sold, or who have knowledge of the fact of sale. But the facts may not be within the personal knowledge of the party, and his clerks may die or remove beyond the x-each of the process of the court, or for other reasoxxs it xxiay not be practicable to obtain their testimony. Besides, the witxxessess, if present, may not be able to recollect the transactions, and this is especially liable to occur in the case -of long merchant’s accounts, consisting of a multitude of sxnall items contracted from time to tixne. To
But upon whatever principle it depends, the usage has become firmly established, in some form or other, as a part of our law. Without attempting a review of the numerous adjudications on the subject, we will content ourselves with stating what we apprehend to be the proper rule on the subject.
When direct proof of a claim for goods sold, or for services rendered, cannot be made by the oath of the party, or of other witnesses, the books of account of the party are admissible, not as conclusive evidence of the claim, but as testimony tending to establish it, the credit of which is to be weighed by the jury. The competency of the books as evidence in the particular case,
A custom has grown up in some parts of this State, which seems to have been followed in the present case, of giving in evidence copies of accounts, proved by witnesses to have been correctly transcribed from the books, and this course derives some support from the language of the court in the several cases of Hazlip v. Leggett, 6. S. & M., 306; Simmons v. Means, 8 S. & M. 397, and Moore v. Joyce, 23 Miss. 584. But there does not seem to be any sound principle upon which such a practice can be sustained. It is going quite far enough to permit the original book itself, after being inspected by the court, and subjected to the scrutiny of the opposite party, to go as evidence to the jury, and in no other way can the credit due to such testimony be properly estimated.
It is not necessary to go into any minute criticism of the instructions given bn either side in the court below. It is clear that, according to the rules herein laid down, the verdict was for a much larger sum than was warranted by the evidence, and that it ought to have been set aside. For this error the judgment will be reversed, and the cause remanded for a new trial.