Smith v. Law

Granger, J.

The only question presented by the motion for a new trial in this case is, whether the books of the plaintiffs, containing the original charge of the goods as sold to the defendant, were admissible in evidence. The plaintiffs were wholesale merchants in Springfield, Massachusetts; the defendant a retail dealer in Putnam, Connecticut. The action was brought to recover the price of twenty-five barrels of flour which the plaintiffs claim that they sold and delivered to the defendant at Putnam on the 7th day of November, 1876. The flour was sold for the plaintiffs, by their salesman, Horace Lane, who delivered the same to the defendant from the depot in Putnam, where it had been sent by the plaintiffs for other parties who did not take it. The defendant admitted that Lane delivered to him the flour, and that he put it into his store and sold a part of it, but denied that he purchased the flour, and claimed that he held it to sell on the plaintiffs’ account, and for no other purpose, and that on the 10th of December the flour unsold was destroyed by fire.

*435 The plaintiffs introduced Lane as a witness, who testified to making the sale as the plaintiffs claimed, on the 7th of November, and that he communicated the fact immediately to the plaintiffs. The plaintiffs also offered in evidence their original books of account, kept at Springfield, containing their daily transactions in their business, among which entries was a charge to the defendant of the twenty-five barrels of flour, under the date of November 8th, 1876, accompanied by proof that the charge was made on that day upon information communicated to them by Lane the day before.

We discover nothing in this case to take it out of the well settled rule that the books of the parties containing daily accounts of their business transactions, and made in the regular course of business, are admissible in evidence in their favor in actions of assumpsit and book debt. In actions of book debt the entries of the parties are made admissible by express statute. Gen. Statutes, p. 471. And in actions of assumpsit for goods sold the same rule applies, book debt and assumpsit being concurrent remedies in all cases where book debt will lie.

The issue between these parties was whether the flour was sold to the defendant, and the entry on the plaintiffs’ books of the charge of the flour was clearly admissible, and the circumstances under which it was made only affected the weight of the evidence. The charges on the books of a tradesman are often necessarily made by a book-keeper upon information given him by the salesman who actually sells and delivers the goods. Such charges are made in the regular course of business. It is difficult to see upon what principle the court could have excluded them. If the plaintiffs had not entered the charge upon their books, it certainly might have furnished a presumption against their claim, and the fact that it was so entered was in accordance with the' usages of trade, and tended to sustain their claim that the flour was sold. It does not affect the case that the delivery of the flour was admitted and the only question was as to whether it was purchased by the defendant or only taken to sell on a commission. The entry was none the less a proof of a sale, so far as it went, and the plaintiffs were entitled to the benefit of it.

*436 There is nothing in the ease that shows that any injury has been done to the defendant, by the ruling of the court- admitting the books. So far as the evidence is disclosed by the motion the case of the plaintiffs was abundantly proven without the aid of the books, and it is probable that they were introduced only as Matter of precaution, and- to prevent the defendant from making an argument against their claim founded on the non-production of the books.

A new trial is not advised.

In this opinion the other judges concurred.