Townsend v. Coleman

18 Tex. 418 | Tex. | 1857

Wheeler, J.

Under what rules and restrictions account books containing original entries ought to be admitted in evidence in proof of the delivery of goods therein charged, has been the subject of much discussion, and some diversity of opinion. (1 Cow. & H. Notes to Phil. Ev, 297, n. 201, p. 318.) But under more or less restrictions they have generally been received. In England a party’s own shop books containing original entries made by his clerk, have been admitted in evidence. The books must have been kept for the purpose ; and “ the entries must have been made contemporaneous -with the “ delivery of the goods, and by a person whose duty it was for “ the time being to make them. In such cases, the books are held “ admissible as evidence of the delivery of the goods therein “ charged, where the nature of the subject is such as not to render “ better evidence attainable.” (Greenl. Ev. Sec. 117 and note.) “ In the United States, (says Mr. Greenleaf,) this principle has “ been carried farther, and extended to entries made by the “ party himself in his own shop books. Though this evidence “ has sometimes been said to be admitted contrary to the rules “ of the common law, yet in general its admission will be found “ to be in perfect harmony with those rules, the entry being &d- “ mitted only where it was evidently contemporoneous with the “ fact, and part of the res gestae. Being the act of the party “ himself, it is received with great caution : but still it may be “ seen and weighed by the jury.” (Id. Sec. 118.) In the notes to the text from which we have quoted, is to be found a concise statement of the result of the rulings upon this subject in the different States ; and in the continuation of the text, the learned author has shown that if the American rule is not in accordance with the principles of the Common Law, it is in' conformity with those of other systems of jurisprudence. (Id. Sec. 119 and notes.) Something more, however, has generally been required, than the mere production of the books, and the testimony of a witness that the party was in the habit of keeping correct books. In the present case, the witness did not profess a knowledge of the manner of keeping the books when the entries were made ; and we think the evidence was not sufficient to bring the case within the rules and restrictions which have been generally applied to the admission of such evidence. There ought at least to have been superadded the suppletory oath of the party. As the entries were made by the party, it may not have been necessary to produce the clerk who was in his employment at the time. Yet if he had been introduced, he might perhaps have proved the delivery of some of the goods charged, or something of the dealings of the parties, from which an inference might be drawn as to the correctness of the account. It would have been more satisfactory had he been produced, or his absence explained. If he was not within reach of the process of the Court, the fact might have been stated. To authorize a recovery upon the evidence adduced, we think an adherence to the rules established by the great majority of the cases in the books, would require, that it should have been made satisfactorily to appear that better evidence was not attainable. It does not so appear by the record ; and it is apprehended that to maintain the recovery would be to set a precedent which might be productive of mischief. The evidence might have been sufficient had it been shown that the plaintiffs had exhausted all other means of proof. But this we think should have been done. We are of opinion, therefore, that the judgment be reversed and the cause remanded.

Reversed and remanded.