Grant v. Cole & Co. , 8 Ala. 519 ( 1845 )

ORMOND, J.

There can be no doubt that a merchant’s account, like any other fact, may be established by circumstantial evidence; but these circumstances must not be remote, or farfetched, but such as afford a reasonable presumption, of the facts attempted to be deduced from them. Thus, in this case, the fact that the plaintiffs and their clerks kept correct books, and charged promptly all articles purchased at the store, did not warrant the inference that the particular account was correct. Such a presumption from the facts, was a mere conjecture. The same remarks apply to the facts in evidence, that the goods charged were suitable to the wants of the family of the defendant, and that he traded considerably with the plaintiffs, and was frequently at their store. These are too general and indefinite, to warrant a particular conclusion, especially in a case, from its very nature, susceptible of precise, and definite proof.

The proof of entries upon the books, by proof of the hand-writing of a deceased clerk, was admissible evidence. [Clemens v. Patton & Co. 9th Porter, 289, and cases there cited.]

The “ account,” by which we understand the paper upon which the items composing the account were stated, was not testimony to the jury for any purpose, as it is the mere written declaration of the party himself. The Court therefore, erred in permitting it to go to the jury, against the objection of the defendant.

The fact that the defendant gave notice to one of the clerks of the house, not to furnish goods for his family without a written order, or the personal direction of himself or his wife, was not notice to the principals of the house or the other clerks ; but we are not able to perceive the importance of this fact upon the case, from any thing stated in the record. If from the previous dealings between the defendant and the plaintiffs, he had given his children or servants a credit at the store, he certainly might limit the dealing in future, and put a stop to further credit. But in any conceivable case, if the goods came to his use with his knowledge or consent, he would be responsible. It would not be sufl ficient to show that they came to his use merely — as for example that they were purchased by his overseer for the use of the plantation. [Fisher & Johnson v. Campbell, 9th Porter, 210.] But to charge him for any article which he did not authorize the purchase of, it must be shown, that he knew the article was used by his family, without objection, or offer to return it on his part.

Let the judgment be reversed, and the cause remanded.