Scott v. Coxe's Adm'rs , 20 Ala. 294 ( 1852 )

CHILTON, J.

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The court properly rejected the evidence offered. If admissible in any aspect, it could only have been received upon the hypothesis that all the articles which were consumed by the intestate and his family, or which were required to supply the family, were purchased of Scott, during the period when the intestate was in the habit of making purchases. The proof which was rejected, depending for its legality upon this preliminary fact, it was for the court to determine whether the fact upon which it depended was established. “It is the province of the presiding judge,” says Gfreenleaf, “to determine all questions on the admissibility of evidence to the jury, as well as to instruct them in the rules of law by which it is to be weighed. Whether there is any evidence or not, is a question for the judge, but whether it is sufficient, is a question for the jury. And if the decision of the question of admissibility depends on the decision of other questions of fact, these preliminary questions of fact are first to be tried by the judge, though he may, if he chooses, take the opinion of the jury upon them.” 1 Grreenl. Ev. § 49.

It is not sufficient that there may be some evidence tending to prove the preliminary fact; it must be established to the satisfaction of the court by competent proof. In the case before us it was not proved; and the court would be wholly unwarranted in concluding, that because the intestate made frequent purchases, he bought of the defendant his entire supply. Such a conclusion would be an obvious non sequitur. Yet it is upon this assumption that the proof offered would depend for all its force; since, if the intestate’s estate is not to be charged with all the provisions and liquors that the family consumed, or which were required for consumption, the amount of the indebtedness, as deducible from the quantity and value of the articles furnished, is left as uncertain as .before the proof was introduced.

The fact that the defendant below kept no clerk, cannot affect the admissibility of this evidence. To decide that it is admissible on this ground, would be to hold out a premium for persons to dispense with the ordinary means of proof; for, if this proof under the circumstances in this case be legitimate, it might often turn out that the shopkeeper would recover for articles which others have furnished, or recover, not for articles actually purchased, but for what the party ought to have procured had he properly provided for his family. A rule which would lead to such consequences could not be tolerated.

The cases cited do not sustain the proposition contended for by the counsel, but are altogether consistent with the views we have above expressed, which we think are supported by several decisions of this court.

In Grant v. Cole & Co. 8 Ala. 519, it is said, "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 far-fetched, but such as afford a reasonable presumption of the fact attempted to be deduced from them.” In that case it was held, that proof 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, and that such a presumption from the fact was a mere conjecture. The same was said as applicable to proof “ 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.” See also to the same point, Hale et al v. Brown, 11 Ala. Rep. 87, 95; Barker v. Sample, 6 ib. 255.

It sometimes happens, that from considerations of public convenience and necessity, tbe rules of evidence as to tbe admissibility of proof are relaxed wben applied to a particular, class of cases, wbicb, from their peculiar circumstances, are regarded as constituting exceptions to tbe general rule; but tbe case before us falls within none of these exceptions.

Let tbe judgment be affirmed.