Pecker v. Hoit

15 N.H. 143 | Superior Court of New Hampshire | 1844

Gilchrist, J.

The books of account of a party, fortified by his supplementary oath, are admitted in evidence, in his favor, by reason of the great convenience of this mode of proof of the ordinary dealings between individuals. Woodes vs. Dennett, [12 N. H. Rep. 510.] The evidence is inferior to the oral testimony of disinterested witnesses, and at common -law is not admissible. The party may, in his discretion, waive his books altogether, and rely upon common law proof, by witnesses, or otherwise, although the books contain, evidence of the matter for which he seeks to recover.

Nor do charges upon books of account possess any of the uncontrollable qualities of a record. They are as unlike a record, in the legal sense of the word} as anything written can well be. They are simply memoranda, made by a person in the course of his business. They are evidence made by himself, and are worthy of credit, or otherwise, according to the appearances which the books present. Eastman vs. Moulton, 3 N. H. Rep. 157; Cummings vs. Nichols, [13 N. H. Rep. 420.]

The charge against Bradbury, although regularly made upon the books of the plaintiffs, was made at the request of the defendant, and for Ms convenience. Estoppels would be as odious as they are sometimes said to be, if tire plaintiffs should be estopped by this entry from showing that the defendant is the true debtor. The charge against Bradbury is, without explanation, an admission that he is the debtor, but the other evidence shows that the contract was made with the defendant. It was held, in Davis vs. Sanders, 11 N. H. Rep. 263, that where a person has procured another to admit a fact to answer a particular purpose, he cannot, in a suit against the party maMng the admission, insist upon it as an estoppel. The same principle is applicable here; for it is always material to consider whether an admission is made independently and because it is true, or is merely conventional; entered into between the parties from other motives than a conviction of its truth, and only a convenient assumption for the particular purpose on hand. Greenl. on Ev. § 275. We are of opinion that the evidence was properly admitted, and that there should be

Judgment on the verdict.