Scott v. Bailey, 73 Vt. 49

73 Vt. 49 | Vt. | 1901

Watson, J.

The plaintiff is engaged in the wholesale and retail grocery business in the village of St. Johnsbury. The defendant is a farmer in the town of Danville. On April 24, 1897, the plaintiff sold and delivered to the defendant a barrel of flour for the price of six dollars, which sum and interest, the plaintiff here seeks to recover. The defendant admitted the purchasing of the flour, but claimed he paid for it during the last of June or the first of July following- its purchase, which payment the plaintiff denied.

The defendant testified that he went to the plaintiff’s store during the latter part of June or the first of July, 1897, at about six or seven o’clock in the afternoon to pay for the flour; that just as he was entering the store, he met the plaintiff’s bookkeeper going out of the store; that he inquired of her if the plaintiff was in the store and was informed that he was away; that he then told her he had come to pay for the flour in question, and was directed by Her to pay the clerks in the store; ■and that he then entered and found two clerks who were just closing the store for the day, and paid one of them six dollars for the flour, and requested him to cross the charge off the plaintiff’s books, which the clerk said he would do or have the plaintiff, on his return, send the defendant a receipt. '

In cross-examination of the defendant, the plaintiff was allowed, subject to exception, to show that a charge of the barrel of flour in question was made to the defendant on the date of the sale; that in making payments to and settlements with the plaintiff before the time in question, the defendant had always been very particular to make them with and to the plaintiff in person; that several times he had waited in the store a long time for the plaintiff to return in order that he might make his settlement with and payment to him, in preference to any of the clerks.

The fact that the defendant was in the habit of calling for the plaintiff to make settlements with and payments to him is not evidence tending to show that on the occasion in question the payment was not made to some other person, — that it was not made, in fact, as the defendant’s evidence tended to show; —because as was said in Phelps v. Conant, 30 Vt. 277, in order to have one fact prove another, there must be a necessary and probable connection between the two. No connection can be said to exist between separate and independent payments made at different times of different bills. In State v. Wilkins, 66 Vt. 1, it was held that the fact that a person had the habit of doing a particular thing, at a particular time, had no tendency to show that he did not do some other thing at another time; and in Clark, Admr. v. Smith & Hayes, Receivers, 72 Vt. 138, it was held that how a train was managed- at other stations had no tendency to show how it was managed at the station in question. The admission of this evidence was error.

Subject to the defendant’s exception, the plaintiff’s account books were admitted in evidence to show that no credit appeared upon them of a payment for the flour in question. This was admitting the books to prove a negative which is not permissible; for such books are not evidence of a negative character to rebut a presumption, but are evidence only in regard to proper matters of book account which positively appear upon them as a debt or credit. Mattocks v. Lyman, 18 Vt. 98.

The defendant denied having received any bill of the flour after the day on which he claimed to have made the payment, and subject to his exception, the plaintiff was allowed to introduce, in connection with his own testimony, certain pages of his letter copy book as evidence to show that he sent the defendant two bills of the flour after the date named. In this there was no error. By the plaintiff’s testimony, the originals, of which these pages were copies, had been sent to the defendant, therefore the plaintiff could not produce them. If anyone could produce them, it was the defendant, and he denied having them. The letter book copies were the next best evidence, and they were properly received in connection with the plaintiff’s testimony as confirmatory evidence.

The defendant made certain requests to charge, and excepted to the non-compliance therewith; but as the case will be reversed upon other questions, the requests are not considered.

Judgment reversed. Cause remanded.