Severance & Smith v. Lombardo
Before: Baldwin
Synopsis
Books of account kept by a party are not competent evidence, in an action for goods sold and delivered, to prove a copartnership between defendant L. and the other defendants, to whom certain lumber had been sold—L. not having dealt directly with plaintiffs.
Such books are competent evidence to prove delivery of goods to the party dealing directly, when the nature of the subject does not admit of better evidence.
Baldwin, J. delivered the opinion of the Court Cope, J. concurring.
The Court erred in admitting the plaintiffs’ books to prove a copartnership of the defendant Lombardo with the other defendants sued, or with others to whom certain lumber (for the price of which the suit was brought) was sold. The books arc held competent evidence to prove the delivery of goods therein charged, when the nature of the subject is such as not to render better evidence attainable. (Greenl. Ev. 117 and note 3.) The reason of the rule supposes the fact of which an entry is made to be peculiarly within the knowledge of the party, and the entry to be admissible where it was evidently contemporaneous with the fact and part of the res gestee. The main transaction thus illustrated is the delivery of the goods. It would seem that the reason of this rule would not permit a party, merely by his own act, to charge one not directly dealing with him, by the simple process of transcribing his name in a private book of accounts, as a partner with some one else so dealing.
Judgment reversed and cause remanded.
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