Sickles v. Mather, 20 Wend. 72

Sickles v. Mather

20 Wend. 72 | N.Y. Sup. Ct. | 1838

By the Court, Cowen, J.

It is not denied that if there were mutual accounts current, and any one item on either side was proved to have arisen within six years next before the suit brought, this will draw after it both accounts, and take the case out of the statute of limitations. Thus the inquiry here brings us, in some measure, down to the admissibility of the books of the plaintiff below. They contain dates within the six years ; and if competent evidence, they are so as well in respect to the date of the sales, as of the sales themselves. It is to be noted, C< e J however, that both Lightbody and the defendant’s witness Hall, gave evidence upon which the .referees might well have been satisfied, that ink was delivered within the six years, so that we are not driven for time to the' books alone.

The books were, however, essential to the main question in the cause ; for there was no other adequate proof of the plaintiff’s account. Were they admissible? It is said, first, that the plaintiff had a clerk ; and if so, they were clearly inadmissible according to Vosburgh v. Thayer, 12 Johns. R. 462. Lightbody calls himself foreman, and says he never in his life made an entry in the plaintiff’s books. This certainly does not look like his being a clerk. The object of the limitation doubtless was to withhold secondary evidence, with which the books alone must certainly be classed, until it shall appear that, at least, the party was without a regular clerk, whose business it is to notice the sales and make entries as they occur in the journal. He is then the only admissible witness. At any rate, this is so as to all the entries, unless it appear affirmatively that some of them were in *75fact not made by him. M'Allister v. Reab, 4 Wendell, 483. Several cases in states where the party’s suppletory oath is allowed, exclude books as evidence of transactions, when it appears they were in fact known to third persons. Such a precaution would be of very little utility in this state, where the party is not sworn, and it is, therefore commonly impossible to learn that others could testify. Lightbody was not in any sense a clerk for the purpose of verifying the books. A clerk can connect them with the sales, (many of which he usually makes himself,) and his original entries, (to the general accuracy of which he can make oath,) become themselves evidence of what he may in fact have forgotten. Merrill v. The Ithaca & Owego Railroad Co., 16 Wendell, 596 to 600, and cases there cited. It would clearly be going beyond the meaning of the qualification in Vosburgh v. Thayer, to say that a man about a factory who attends no farther to sales than the mere delivery of goods, and noting the fact for a temporary purpose upon a slate, should be esteemed the only competent witness to establish all the sales and entries of his principal.

Then as to the manner in which these entries were made. We have, with what degree of wisdom, time must determine, held that books of original entries made by the party, shall be evidence in his favor, under certain qualifications; and this whether he be a merchant, or engaged in any other business. We do not require nor allow his own oath, a practice I believe peculiar to this state and that of New-Jersey. Even if this be a hazardous species of evidence, as every one, I think must allow, yet, I am at a loss to perceive that the adoption of an exception which shall exclude entries from a slate, is of any importance towards diminishing the danger. In those states where the suppletory oath comes in, I know there are several cases for and against the reception of entries thus made. If there be any degree of protection against abuse in such a restriction, it has there, at least, the merit of being a more practicable one; for the party can be interrogated as to the manner of his entry. With us we have ordinarily no means of showing this, and the case must be one *76of a thousand in which it is disclosed. The witness who could speak to such a fact must in general, like the one in this case, be a third person who has made the slate memoranda himself. After all, perhaps the better considered cases are those that allow books in evidence which are made up from such memoranda, even where the party is a witness. So long as books are allowed at all, it is not very easy to perceive'what great degree of additional accuracy or honesty we can give to them by forbidding the party to use a slate during the day, and transcribing from that into his book at night. It is a very common practice with men in all kinds of mechanical and, other business conducted under circumstances which render the immediate use of pen, ink and paper inconvenient 5 and where such was found to be the ordinary course of the party, his books were received for that reason ; Faxon v. Hollis, 13 Mass. R. 427 ; though where a journeyman was in the habit' of making the entries on a slate, whence they were copied by his master after a long time, the manner was held exceptionable and the books rejected. Kessler v. M'Conachy, 1‘ Rawle, 441. Where one partner marked a sale of butcher’s meat with chalk on his cart, and the other transcribed it on the return of the cart, the book was received on their oaths. Smith v. Sanford, 12 Pick. 139. So where a butcher’s servant carrying out meat, marked the sales in pencil, which his master transcribed on his return. Ingraham v. Bockins, 9 Serg. & Rawle, 285. And see all the kindred cases in Pennsylvania, cited in Forsythe v. Norcross, 5 Watts, 332. Not to pursue the cases farther, it seems to me that the benefit to be derived from the qualification contended for by the counsel for the plaintiff in error, would not compensate for the great quantity of evidence which it would cut off even if we had the means of reaching it by testimony.

It is not denied by counsel that the plaintiff below was entitled to have his books received in evidence, under the limitations prescribed in Vosburgh v. Thayer ; and we think he brought himself within that case.

The rule itself which receives the party’s books, even with tiis *77oath, seems to be regarded as of questionable policy, if we are to judge from the language of the courts and the course of decision in several states where it prevails. In some they appear disposed •to load it with a multitude of restrictions as to the kind of business in respect to which books are tobe received, and the manner in which they are kept, and the probability that better evidence may be had, &c. The rule is undoubtedly a departure from the common law, and may be a dangerous one : but that is rather an argument for repudiating it altogether than attempting to mitigate its virulence by feeble palliatives.

The judgment of the court below is.affirmed.