Landis v. Turner

Field, C. J. delivered the opinion of the Court—Baldwin, J. concurring.

The plaintiff is a blacksmith and a farmer, and the action is brought upon an account for services rendered and materials furnished in the course of his trade, and for articles furnished from his farm. The items of the account are not given, and the complaint only designates the services rendered, and the materials and articles furnished, in general terms. The answer admits the rendition of the services, and the furnishing of the materials and articles; but denies, that they were of the value alleged in the complaint. On the trial before the referee, the book in which the plaintiff made the entries of his accounts was given in evidence for the purpose, it is presumed, of showing the specific services rendered, and materials and articles furnished, and of establishing their value. As a foundation for its introduction, the plaintiff offered himself as a witness, and testified, that the same was his book of original entries, in which he kept his accounts; that the entries were made by him at the time they purported to have been made, and that he kept no other books. On cross-examination he further stated, that he had no Clerk, that he kept his own book, that the charges were made in the first instance on a slate, from which he was accustomed to transfer them to his book on the evening of the same day; that sometimes he waited until the slate was full before making the transfer, but when an unusual time passed before it was filled, he did not wait; that the transfer was generally made from one to three days, and was never delayed for a week. The plaintiff then proved, by persons who had dealt with him, that in his transactions with them his accounts were correct, and that he had the reputation in the neighborhood of keeping correct accounts'.

[575]The defendants objected to the examination of the plaintiff on the ground of his incompetency as a party to the suit, and to the introduction of the book of entries, on the ground that it was not sufficiently proved. Neither of these objections was well taken. The evidence of the plaintiff was upon an incidental and preliminary matter, and the rule which excludes the testimony of parties has no application. That rule has reference to the matters in issue, and not to incidental matters, auxiliary to the trial of the cause, upon which the testimony is addressed solely to the Court. (Bagley v. Eaton, 10 Cal. 146.) The book of entries constituted the evidence in the case bearing upon the issue; the testimony of the party only laid the foundation for the introduction of that evidence. The referee occupied the double character of Judge and jury, and the admissibility of the book was to be decided by him in the first instance in his character as Judge, and to enable him to determine the question the testimony was properly received. The credit and weight given to the entries were entirely distinct from the preliminary matter. There are, it is true, numerous decisions against the reception of the party’s testimony in cases like the present, but the clear weight of authority is the other way. His testimony is taken in nearly every State of the Union. When this case was argued we supposed the rule was otherwise, recalling at the time the decisions of the New York Courts on the subject. A somewhat extended examination since has satisfied us, that the prevailing and the better rule in the United States differs from that of New York. The testimony of the party must often be the only means of establishing the fact that the book contains the original entries, that the party kept no other books, and that he had no Clerk, and as it is subject to the scrutiny of a cross-examination, it must afford protection against the perpetration of fraud by false entries.