Roche v. Ware

McKinstry, J. Plaintiff’s books of account were admitted in evidence over the objection of defendant that they were not sufficiently proved, The only evidence on which the books were admitted consisted of testimony of the wife of plaintiff, which tended to prove that the plaintiff had no clerk; that entries were made in original books by the plaintiff on the evening of each day purporting to be charges for work done and material furnished during the day; and that the accounts as entered in the blotter or day-book were correctly transferred to the ledger.

In the English courts, tradesmen’s books were not formerly legal evidence in favor of the party making them. It would seem that the practice of allowing a party’s books of account as evidence came into use in New York and New Jersey with the Dutch colonists, and into the eastern states with the English colonists from Holland who settled in New England. (5 Conn. 496; Conklin v. Stamler, 8 Abb. Pr. 395; introduction to 1 E. D. Smith’s Reports.) It would seem, also, that by the Dutch law the cogency as evidence of the books might be strengthened by the testimony of the party.

Yet in Vosburg v. Thayer, 12 Johns. 461, it would appear to have been assumed that the party could not testify with respect to his own books. The Supreme Court of New York there held that books of account ought not to be admitted, “unless a foundation is first laid for their admission,'by proving that the party had no clerk, that some of the articles charged have been delivered, that the books produced are the account-books of the party, and that he keeps just and honest accounts, and this by those who have dealt or settled with him.” And the court added, “under these restrictions, from the necessity of the case, and the consideration that the party debited is shown to have reposed confidence by dealing with and being intrusted by the other party, they are evidence for the consideration of the jury.” In subse[377]quent New York cases it was held that a party’s books of account were inadmissible unless he proved, not only that he kept just and honest accounts by those who had settled with him by his books, but also that the party charged had dealt with him, and that some of the articles charged were actually rendered or delivered. (Morrill v. Whitehead, 4 E. D. Smith, 239; S. C., 2 Hilt. 432; Conklin v. Stamler, 8 Abb. Pr. 395.)

The practice of all the other states, so far as we are informed, where books of account are admitted in evidence, is to authorize, at least, the preliminary proof to be made by the party himself. In. a note to section 118 of the first volume of Greenleaf’s Evidence it is said,—many cases being cited to sustain the statement: “The rules of the several states with regard to the admission of this evidence are not perfectly uniform; but in what is about to be stated, it is believed they concur..... If the books appear to be free from fraudulent practices, . . . . the party himself is then required to make oath in open court that they are the books in which the accounts of his ordinary business transactions are usually kept, and that the goods therein charged were actually sold and delivered to, and the services actually performed for, the defendant.” He should also swear that “the entries were made at or about the time of the transactions, and are original entries thereof.”