Majority
p. 679James B. Horton, Resp't, v. William H. S. Wood, App'lt. (Supreme Court, General Term, Second Department, Filed December 12, 1892.)
Headnote
Evidence—Entry ob contract.In an action upon a contract where the terms thereof are in dispute, a memorandum of the contract made by the person with whom the contract was made, and who has since died, is inadmissible unless shown to have been read or shown to the other parly, even though the same was entered in a book.
Appeal from judgment in favor of plaintiff, entered upon verdict and from order denying motion for a new trial.
Action to recover commissions claimed to have been earned as a book canvasser. The parties disputed as to the terms of the contract, plaintiff claiming that he was to have commissions on all accepted sales, the defendant that he was to pay commissions only on the amount he collected on plaintiff’s subscriptions.
Plummer, the clerk with whom plaintiff made the contract, had died; and defendant offered in evidence a memorandum of the terms of the contract, made by Plummer, in defendant's books. The evidence was rejected by the court, unless it was shown that the memorandum was read to or shown to the plaintiff.
Walter Edwards, for app’lt;
Andrew J. Provost, for resp’t.
The verdict was not contrary to the evidence. The letters of plaintiff upon which defendant relies are entirely consistent with plaintiff’s evidence. We think they might be said to corroborate it so far as to show it is not an afterthought, but that he frankly stated his views when the dispute first arose in the same manner that he states them now.
The exception to the exclusion of Plummer’s statement can
p. 680
not be sustained. Entries in books of accounts are sometimes admitted, jas are records kept by public officers, after the death of those by whom they were made. But no authority is cited to show that a written statement of the facts in a disputed cause can be proved after the death of the writer simply because entered in a book.
Judgment affirmed, with costs.
Barnard, P. J., and Dykman, J., concur.