Ward v. Wheeler

18 Tex. 249 | Tex. | 1857

Wheeler, J.

The only question presented by the record, which is deemed to require notice, is as to the admissibility of evidence, and its sufficiency to support the verdict. It cannot be doubted that it was competent to permit the witness, Mitchell, to testify as to the correctness of the plaintiff’s account, to the extent of his information and knowledge of the subject. And it is not perceived that there was any impropriety in the course adopted by the Court to elicit the information and knowledge he possessed. Having been the principal clerk and book-keeper, he was certainly competent to testify respecting the correctness of the books under his especial care and keeping. That other clerks in the store may have made an occasional entry of goods sold by them, did not necessarily render them the only competent witnesses of the correctness of the entries. The book-keeper under whose especial supervision they were made may be supposed equally cognizant of their correctness, and competent to depose to the fact-The motion to exclude items and portions of the evidence, as disclosed by the bill of exceptions, appears to have been premature. The proper time to have made the motion would have been when the plaintiff had closed his evidence, rather than when he had concluded the examination of the particular witness. Portions of the account not sufficiently established by that witness, might be by others ; as the event showed. Objections to evidence apparently well taken at the time, and certainly so, if the evidence had been closed on the part of the plaintiff, were afterwards obviated by other evidence. Other witnesses corroborated the testimony of the book-keeper respecting parts of the account, which, upon his testimony alone, might not have been deemed sufficiently established.

It is not deemed necessary to notice all the objections to evidence, and the rulings of the Court upon them, separately. We think, upon the whole, the correctness of the plaintiff’s account was established by competent evidence, and beyond a doubt, to at least the recovery awarded by the judgment of the Court; and that the proofs were made in accordance with the principles maintained by the Opinion and judgment of this Court in the cases of Underwood v. Parrott, (2 Tex. R. 168.) and Cole v. Dial, (8 Id. 347.)

The Court did not err in refusing to give in charge to the jury abstract propositions upon the law of evidence. The Court had ruled upon the questions of evidence propounded, at the time, and in the terms propounded ; and more, upon that subject, could not be required. To have given the instructions asked in the" form proposed, would have had a tendency rather to mislead than to enlighten the jury.

We are of opinion there is no error in the judgment, and it is affirmed.

Judgment affirmed.