Conklin v. Stamler

In Morrill agt. Whitehead (4 E. D. Smith, 289), it was proved that the books produced were the account books of the party; that he had no clerk, and that he kept fair and honest accounts; but, as there was no proof that any one of the services entered in the book had been actually rendered, we reversed the judgment. This is the first case in this state that has gone, I think, that length, or in which it was distinctly determined that some of the articles or services charged in the account must be shown to have been actually delivered or rendered; though it has been frequently intimated that that proof was essential before the books could be received or used in evidence. (Vosburgh agt. Thayer, 12 Johns. 461 ; Sickles agt. Mathew, 20 Wend. 76 ; Foster agt. Coleman, 1 E. D. Smith, 86.) The decision in Morrill agt. Whitehead is decisive of the present case, as the only proof before the justice here was that the plaintiff had no clerk, and that persons who had dealt with him and had settled by his books had found them to be correct.

But even if this proof had been supplied, I am of opinion that it would not now be sufficient to authorize a judgment; The practice of allowing the party’s books of accounts to be received as sufficient evidence of the existence of the debt, which was contrary to the English rule (3 Bl. Com. 368; Marriage agt. Lawrence, 3 B. & Ald. 142), came into use in this state and in Hew-Jersey with the early Dutch colonists, in whose courts merchants and traders were always allowed to exhibit their books of accounts, where it was acknowledged or proved that there had been a dealing between the parties, provided the books had been regularly kept with the proper distinction of persons, things, year, month and day. Full faith and credit were then given to them, especially where they were strengthened by the oath of the party, or where the cred

In the Dutch colonial courts, the parties appeared before the court and made their own statement, and if they differed as to a fact which the court thought material, either party might be put to his oath, so that the objection made to this species of evidence was, in these tribunals, of less force, as the party who made the entries could be interrogated in respect to the truth or correctness of each item. In Hew-EnglandL, they very wisely retained the feature of the suppletoiy oath of the party substantiating the' truth of the entries in connection with the practice of allowing such books as evidence r, and where the matter is not regulated by statute, as in Maine and Rhode Island, long usage has established that the books of account must be supported by the oath of the party. (3 Griffith's Law Beg. 1005; id. 116 ; 3 U. S. Law Intelligence., 227.)

In Case agt. Potter ( 8 Johns. 211 ), the practice of allowing the entries of the parties, made in the usual course of business, to be received as evidence, was recognized as a usage established in the courts of this state. It was declared to be contrary to the course of the common law—a circumstance that greatly embarrassed the court, finding, as they expressed it, that the usage had crept in, and that it was difficult or impossible in many cases to give proof of a sale and delivery. They adverted to the custom in other countries of requiring, in respect to such evidence, the suppletory oath of the party to give it full effect, but declared that they had no authority to require or admit the oath of the party, and, instead of doing one thing or the other, either repudiating the practice as contrary to the common law, or else holding that it had been the law from the early settlement of the colony, and "was therefore

But the other members of the court, in an opinion per curiam, thought that the usage and the necessity of admitting such proof had been too long sanctioned and felt in our courts, and that it was then too late to question its admissibility ; but instead of simply recognizing the practice as it had prevailed in the Dutch tribunals, and declaring that the party should or could be examined under oath as to the truth or correctness of the entries made by him, they devised, as a test and safeguard, the special preliminary proof which has since been required as a condition precedent to the admission of the books, influenced, no doubt, by what was said by the whole court in the former case, and what was strangely insisted upon by Judge Platt in his dissenting opinion, that they had no authority to require and could not admit a party to be sworn as a witness.

The examination of these cases will show that .the court had no very clear conception of the nature of the question before them, which was simply whether this practice was the law of the colony before the revolution; for if, by long usage and general adoption, it had, before that event, become the re cog

But instead of doing this, they looked into the English books and found that Lord Holt had said twice, at nisi prius (Pit-man agt. Madox, Holt, 298 ; and Price agt. Earl of Torrington, 1 Salk. 285), that a tradesman’s shop book was not of itself evidence, without something more, and they undertook to supply what that “ something more ” should be. It was the rule of the common law that the party to the record could not be a witness, and Blackstone had declared (3 Com. 368) that the practice abroad of allowing a merchant’s book with his suppletory oath to amount at all times to full proof, was a distortion of the civil law, in which it may be remarked he was mistaken ; for to make the books sufficient evidence, in countries where the civil law prevails, something more than the suppletory oath of the party is requisite. (Domat, part 1, b. 3, § 2, art. 9 ; Meyer's Institutiones Judiciaries, l. 14, p. 387; Cod. 4, 19, 5, 7; Code Civil, 1, 3, 73, § 5, art. 1267.) The judges, no doubt, concluded from the rule of the common law, and from Blackstoue’s interpretation of the civil law, that the

But the important change recently made in the law of this state, by which. a party may testify the same as any other witness, has obviated the difficulty that was supposed to exist when the rule above referred to was adopted, and there is now no occasion for resorting to the books unless it may be to refresh the party’s memory as to the items, or in cases where there is a failure of recollection. In the latter case, the books, if they contain the original entries of the transaction, would still, I apprehend, be evidence within the rule recognized in Merrill agt. Ithaca and Owego Railroad Co. ( 16 Wend. 586 ), • that is, if the party who made the entries has entirely forgotten the facts which he recorded, but can swear that he would not have entered them if he had not known them at the time to be true, and that he believes them to be correct. But I agree with Judge Brady, that the books, except in the cases above put, can no longer be received as sufficient evidence of the sale and delivery of goods, or of the performance of services, by merely proving the preliminary facts which heretofore made them sufficient evidence; but that the party, if he have