Kerns v. McKean
Before: McKinstry
Synopsis
Evidence—Books of Account—Contbact fob Sale of Land—Nonfayment of Purchase Price. —In an action by a vendor to a contract for the sale of land to recover the possession thereof, on the ground that the vendee had not performed the conditions of the contract with respect to the payment of the purchase price, the books of account of the vendor, showing part payment of the purchase price on certain days, are not admissible to establish that no further payments had been made, when there is no evidence that the book was one of original entries, and when the person who kept the same, being present at the trial, does not testify that the entries were made at the date of the transactions they purport to record, or that the entries were correct of his knowledge when he made them.
McKinstry, J. This is an action for the recovery of the possession of a certain tract of land.
[88]One Patterson, being the owner of the premises herein demanded, entered into a written contract with one Sanford, since deceased, for the sale to the latter of the land for the consideration of $3,336, with interest,— $500 by exchange of lands at the making of the agreement, and the balance to be paid in four equal annual installments. Sanford, the purchaser, was also to pay all taxes. And it was further agreed that if any default should be made in any payment of principal, or interest, or taxes, the whole principal and interest should become due at the election of Patterson, who, upon such default, was authorized to declare the agreement and rights of Sanford thereunder forfeited and ended by depositing a written notice of such forfeiture in the office of the county recorder, etc.
At the trial of the present action the plaintiff, grantee of Patterson, as evidence that Sanford had not complied with his agreement by paying the full sum of $3,336 and interest, introduced “the account-book of Patterson of the Gorralitos rancho, wherein the accounts of Sanford and others with Patterson were kept by Patterson, and all the entries therein were made by and in the handwriting of one Hanna, who was Patterson’s bookkeeper at the time.” The objections of the defendant were overruled, and the plaintiff put in evidence the following entries from the book: —
La Motte.
A. P. Saneoed,
In account with Gorralitos Rancho.
1867, Oct. 25. To purchase of 240.60 acres..... $3,336
Oct. 25. By exchange of land............ 500
1868, Dec. 19. By cash on account............. 500
1871, May 20. By cash on account............. 200
The non-payment of moneys to be paid by Sanford upon the contract of purchase was a fact of a nature to be proved by the usual evidence of it. The performance or non-performance of such a specific agreement is [89]
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