Wheeler v. Walker, 45 N.H. 355

45 N.H. 355 | N.H. | 1864

Bellows, J.

The books are not admissible upon the ground that they are the books of a corporation.; for although such are competent to prove the acceptance of a charter, the organization of the corporation, and the election of officers, and other corporate acts, yet in matters of a private nature they are not admissible in support of its own claims against a stranger, nor even against a member who claims adversely, and not under the corporation. 1 Greenl. Evi. sec. 493, and cases; 2 Starkie Evi. 298; 1 Cowen’s Phillips Evi. 422, & 3 do. n. 800; Marriage v. Lawrence, 3 B. & Ald. 142; Haynes v. Brown, 36 N. H. 567; Commonwealth v. Woelper, 3 S. & R. 29.

The question, then, is whether the entries in question are admissible as the entries of a person since deceased, made in the regular course of business; or as part of the entries previously introduced by the defendant. In regard to the first of these questions, it seems to be well settled that entries made in the usual course of business by a person since deceased, whose duty it was to make them, and who had at the time no interest to misrepresent the facts, are admissible in evidence. Price v. Ld. Torrington, 1 Salk. 285; 1 Smith’s Leading Cases, 139, and notes; Doe v. Turford, 3 B. & Ad. 890; Poole v. Dicas, 1 Bing. N. C. 649; Higham v. Ridgway, 10 East, 109; Doe v. Robson, 15 East, 32; Brain v. Preece, 11 M. & W. 773, & note; Welsh v. Barrett, 15 Mass. 380; Halliday v. Martinet, 20 Johns. 168; Nichols v. Goldsmith, 7 Wend. 160; Sheldon v. Benham, 4 Hill’s Rep. 129; Augusta v. Windsor, 19 Maine, 317; Nicholls v. Webb, 8 Wheat. U. S. Rep. 326; 1 Starkie, 315, 319; 1 Greenl. Evi. sec. 116. See also Batchelder v. Sanborn, 22 N. H. 325, where many of these cases are cited and commented upon, and it is said by Eastman, J., that the court is not disposed to question the correctness of the doctrine announced by them. See also Pembroke v. Allenstown, 41 N. H. 365.

One question, then, is whether the entries were made in the usual course of business; and that would involve the enquiry whether the bank was intended in the note as the holder or collector; for if the bank had no interest in the note, or duty in respect to it as collector, but it was merely the private business of the cashier, it is quite obvious that said entries upon the books of the bank would not be in the usual course of business, but such entries would stand upon the same ground as if made in the private books of the cashier, and, of course, not admissible. , It appears, however, that, at the death of Mr. Wheeler, the note was found among the papers of the bank, and as the case finds, was claimed as its property; and this in connection with the entries adduced by the defendant was evidence from which the court might have found, in the •first instance, that the bank had such an interest in ,it that the entries might be regarded as made in the usual course of business. It is true, there are "facts reported that tend strongly to rebut this inference, and it might have been proper, if desired by the defendant, to have submitted the question to the jury, as was formerly done in respect to the interest of a witness, with instructions that if they found the bank had no interest as holder, collector or otherwise, then to lay these entries out of the case. But, as no exceptions are taken upon this ground, it is to be understood that the case was submitted to the .jury with proper instructions.

■Another question is whether, at the time of making these entries,Mr. Wheeler had any interest to misrepresent the facts, and this must depend upon the question whether he still was interested in the payment of the note either as owner, endorser, or in any way, liable over to the bank. Upon a careful consideration of the evidence reported we are led to the conclusion that the jury might have found that Mr. Wheeler had no interest; although it cannot be disguised that there is evidence tending strongly to rebut such an inference. We cannot, however, say that there was no evidence that the whole interest was in the bank; and consequently the court might permit the entries in question to go to the jury with proper instructions, which, as in the other case, in the absence of exceptions, must be presumed to have been given. Assuming, then, that the judge who tried the cause found that the entries were made in the usual course of business, and by a person whose duty it was to make them, and who had no interest to misstate what had occurred, we think that the entries were rightly admitted; and this conclusion makes it unnecessary to consider whether the entries were admissible as part of those offered by the defendant.

There must therefore be

Judgment on the verdict.