Cowdery v. McChesney

Action upon Open Account—Value of Services—Pleading—Objection to Evidence—Amendment.—In an action against the executor of a deceased person to recover the balance due on a mutual, open, and current account between the plaintiff and the deceased, an itemized statement of which had. been presented to the executor, upon an objection taken to evidence of the value of services of the plaintiff included 'in the account, upon the ground that it was not germane to any issue, for the reason that the complaint, though alleging that the work was done under an agreement to pay what the services were reasonably worth, did not allege their value, it was error not to permit the plaintiff to amend the complaint so as to state the value of the services, and to persist in excluding all evidence thereof.

Id.—Evidence—Proof of Account—Items.—The court cannot properly require the account to be proved before allowing the plaintiff to prove the items thereof. The only way in which an account can ordinarily be proved is to establish its several items.

In.—Primary and Secondary Evidence—Oral Proof of Items—Books of Account.—The oral testimony of persons having personal knowledge of the transactions involved in the items of an account is the best evidence of such items, if they do not result from a written contract, and is primary evidence thereof, notwithstanding the existence of books of account showing them. Such' books of account are only secondary and supplemental proof of the items.

Id.—Action against Executor—Nonpayment After Death of Deceased —Testimony of Plaintiff.—In an action upon an account with a deceased person, brought against his executor, inquiries of the plaintiff as a witness, as to whether anything had been paid to him since the death of the decedent, on account of any services rendered by him to deceased during his lifetime, if he rendered any such services, and whether, if any balance of account was due to him upon such death, such balance still remains unpaid, do not relate to matters occurring prior to the death of the deceased, and do not fall within the prohibition of section 1880 of the Code of Civil Procedure.

In.—Nonpayment by Deceased—Books of Account—Foundation for Introduction.—Books of account kept by the deceased, if not containing proof of the payment of plaintiff claim, may be looked to for evidence of the negative fact of nonpayment by the deceased during his lifetime; and notwithstanding the inhibition of section 1880 of the Code of Civil Procedure, the foundation for the introduction of such account hooks, if kept by plaintiff for the deceased, may be laid by the testimony of the plaintiff.

Id.—Nonproduction of Books by Executor—Nonsuit—Appeal—Error not Presumed Harmless.—Where the books of the deceased were last seen in the possession of the executor, and he failed to produce them upon the order of the court, and it appeared that they could not be found, the objection of the executor as respondent, upon appeal of the plaintiff from a judgment of non-suit, that error occurring at the trial must be presumed harmless, because nonpayment of the claim during the lifetime of the deceased was not proved, will not be entertained, 'in the absence of explanation under oath by the defendant as to why the books were not produced in compliance with the order of the court.