90 Cal. 186 | Cal. | 1891
— This is an action upon the official bond of the defendant Fairfield, upon which the defendants and appellants Hendry and Ray were sureties. Before the trial, Fairfield died, and by the consent of parties the action was, as tó him, dismissed as of a date prior to
1. There are some twenty-five points made by appellants, which we do not deem necessary to notice in detail. It is sufficient to say that the court below did not commit any error except with respect to the matters hereinafter mentioned.
2. The plaintiffs introduced evidence to the point that , Fairfield, while holding the office of wharfinger, for which said official bond was given, received certain sums of money in his official capacity at various times within the period stated in the complaint; and for the purpose of showing that he had not paid said money to the board of state harbor commissioners, as his official duty required, they introduced certain books which the secretary of said board is required to keep by section 2522 of the Political Code. These books are made by statutory law “prima facie evidence of the facts therein stated” (Code Civ. Proc., secs. 1920, 1926); and they were introduced by plaintiffs to prove that Fairfield did not pay any of said moneys to the board, because said books did not contain any account of such payment, which they should have contained if such payment had been made. It is quite evident thát plaintiffs were called upon to prove something more than the 'mere fact of the receipt of the moneys by Fairfield; for the presumption would have been that he performed his official duty, and disposed of the money as such duty directed.
The defendants, for the purpose of overcoming the prima facie character of evidence afforded by said books, offered to prove that one Gray, who was secretary of the board during the time when Fairfield was wharfinger, had incorrectly, falsely, and fraudulently kept said books. In this connection they offered to prove false entries and fraudulent omissions in. the books, with respect to business done withtheboard by persons other than Fairfield.
A prima facie case may be rebutted from any standpoint within the boundary of legitimate evidence. A merchant’s or shop-keeper’s books, after some slight preliminary proof of their correctness, are prima facie evidence of the sale and delivery of goods. Under our codes these books of the secretary of the harbor commissioners are made prima facie evidence of certain facts, without any preliminary proof. But the same rule applies in both cases; that is to say, the books are to be taken, in the first instance, as competent evidence of the truth of certain statements therein contained, because they are presumed to have been correctly and honestly kept, and to be truthful and creditable, until the contrary be shown. But the contrary may be shown by proof that they have not been fairly and honestly kept, and that their character is such as to render them unreliable and valueless as evidence. And this may be done by proving false and fraudulent charges and entries against persons other than the party to the suit on trial. If such proof were confined to items of the particular account against the defendant in the action, it would be of little value; for if the defendant could by independent evidence disprove the entries made against him, he would have little cause to assail the general character of the books. A case strictly in point is that of Funk v.
The judgment and order appealed from are reversed, and the cause remanded for a new trial.
De Haven, J., and Sharpstein, J., concurred.