Bookout v. Shannon

Cooper, J.,

delivered the opinion of the court.

The single question presented in this case is as to the competency of the books offered in evidence by the plaintiff. The suit is upon a note, and also upon an account for professional services, rendered by the plaintiff, a physician to the appellant’s intestate. For the purpose of proving the account, the plaintiff offered in evidence an account-book, in which appeared the names of various persons, arranged in alphabetical order, and opposite each name various dates. Beneath each date appeared a hieroglyphic. Among the names appeared that of appellant’s intestate, and opposite to it the following entries.

Feb. 26 27 28; M’eb 3 4 5 6 7 8 25 26 27 29 * / x //////XXX/

Aug. 5 6 7 8 12 13 XX/ / / X $87. Probated account.

On the fly-leaf of this book was written, “ 1878-Dr. H. Shannon.” No suppletory evidence was offered with the book, and to its introduction as evidence the defendant objected. First, because the book was not shown to be the best evidence, and because it was not shown that the plaintiff ever attended the intestate or his family. Second, because it was not shown that the book was correctly and properly kept. Third, because the book was not identified, or shown to be the book of accounts kept by the plaintiff in his business beyond what the book itself showed. Fourth, because the book was only the plaintiff’s own testimony. And fifth, because the entries in the book did not correspond with the account sued on.

The first ground of objection is not tenable. The suit is brought to recover for personal services rendered by the plaintiff to the defendant’s intestate; and by law the plaintiff was prohibited from testifying as a witness to establish the correctness of the account, or that it was due from the intestate at his death. The rule requiring the production of the best evidence *383 is not applicable, where the evidence offered is the best that can be produced by the party. Starkie on Evid. 644. Evidence of the fact that the plaintiff had attended the intestate would not have alone authorized a verdict for the plaintiff, but it was necessary to prove that the particular services sued for were rendered, and of this fact the books offered were evidence, if competent.

The rule governing the production of the character of evidence here offered was laid down by the court in the case of Moody v. Roberts, 41 Miss. 74 , to be “ when direct proof of a claim for goods sold, or for services rendered, cannot be made by the oath of the party, or of other witnesses, the books of account of the party are admissible, not as conclusive evidence of the claim, but as testimony tending to establish it, the credit of which is to be weighed by the jury. The competency of the books as evidence in the particular case is a question for the court, and, in order to justify their reception, it must appear that they are the regular books of account of the party, containing the original entry of his transactions from day to day, in the regular course of his business, and made at or near the time of the transactions to be proved, and that they are fairly and honestly kept. The entries must purport to have been made with a view to charge the opposite party, and alterations and additions in the account sued on, apparent on their face, must be satisfactorily accounted for. No mode is prescribed by law in which a book must be kept to make it evidence, and the question of competency must be determined by the appearance and character of the book, regard being had to the degree of education of the party, the nature of his employment, the manner of his charges against other people, and all the circumstances of the case.” In declaring that the question of the competency must be determined by the appearance and character of the book, we do not understand that the book alone, unsupported by any oath of the party or other evidence, is sufficient proof of its own competency, however orderly may be the appearance of its entries. What is there meant is that the court will look to the book to see if it purports to contain entries of charges against the party, such as it is, if competent, evidence to prove; that it is on its face a book of accounts, *384 and not a collection of loose and indeterminate memoranda; that there are or are not alterations or additions requiring explanation by the party offering it in evidence; and for the purpose of satisfying itself as to. those facts of which the book itself is evidence.

But it is apparent that the books cannot be received as sufficient alone to prove their own competency ; for, if such was the rule, the door for fraud would be thrown so invitingly open, that the resulting evils would greatly overbalance those which the rule permitting them to be introduced was established to avoid. The sufficiency of the preliminary and suppletory evidence ought to be tested in a large degree by the circumstances which surround each case, and, while it would be difficult to formulate a rule by which it ought to be tried, it may be said that when the party introduces evidence satisfactory to the presiding judge, showing that the books are the books of account containing entries contemporaneous with the transactions under investigation, and the books themselves are unobjectionable and apparently fair, they may be admitted as evidence of the account.

The second and fifth objections are for matters which go to the weight of the evidence and not to its competency. The fourth objection is not tenable. The books are not the- testimony of the party in the sense that they are inadmissible under our statute prohibiting a party from giving testimony against the estate of a deceased person. The admissibility of this character of evidence is not affected by the fact that the party making the entries is himself disqualified from giving testimony as a witness. Indeed the books are admitted only because of a lack of better or more satisfactory evidence on account of the death, or incompetency of the party who made them, or his inability to remember the facts. When the party making the entries is incompetent as a witness, the books themselves are the evidence, and his oath may be given as supplementary proof to the court on the question of their competency; but when the party is a witness, then they may be used as a means of refreshing his memory, and only become evidence themselves in those cases in which, having examined the entries for the purpose of refreshing his memoiy, he is still *385 unable to remember the facts. Starkie on Evid. 679 ; Nichols v. Haynes, 78 Penn. St. 174.

The plaintiff, in explanation of the entries in the book of accounts, offered in evidence what appears from the bill of exceptions to have been a key to the hieroglyphics in which the account was kept. Conceding the competency of the account-book, we see no error in permitting the introduction of the key to the system. If a witness had been introduced to explain the entries on the book, it is apparent that he could only have given in' substance what was fully and more satisfactorily explained by the book itself. It was in fact a disconnected part of the book of accounts, necessary to an explanation of it, and containing the best evidence of the facts it was introduced to prove.

The judgment, because of the error committed in admitting without suppletory proof the book of accounts, is reversed and a new trial awarded.

Judgment accordingly.