Gosewich v. Zebley , 5 Del. 124 ( 1848 )

The plaintiff proved his books in the usual form; and also proved a presentment of his bill to defendant, and a promise to pay it.

The defendant, contra, called witnesses to contradict the account, and falsify the entries.

Mr. Johnson, to the jury. — A book regularly and fairly kept is evidence of things properly chargeable in an account; but if any portion of the charges be shown to be false, it not only weakens the weight of the book as evidence, but destroys it altogether. It is not an instrument of evidence. It is different as to a witness. He may be cross examined, and a part of his testimony may be received and a part rejected. Not so of a book as evidence. There is no distinguishing between correct and incorrect charges; if any are shown to be false, the book is not evidence as to any. This is a rule not only of necessity, but of policy. A party relying on his own book exclusively to prove his demand, ought to have no benefit of it, if any part be false. The act of assembly makes the book evidence, if "regularly and fairly kept;" not otherwise.

Mr. Gordon denied this, and said he had proved the case apart from the book, by the evidence of a promise to pay the account rendered; and there was a count on an account stated.

The Court charged the jury, that a book of accounts regularly and fairly kept, together with the plaintiff's oath, is competent evidence as to matters properly chargeable in an account, the credit to be left to the jury; and the discrediting any item of the account does not render the book incompetent as a medium of evidence, though it might or might not (as the jury should determine,) discredit the whole account, and render the book of no avail. If some of the entries are falsified, it may operate to discredit the whole account, or only a part; according to the weight which the jury shall give to the contradicting evidence; weighing at the same time the corroborating evidence; such as the evidence of a promise to pay the balance appearing on the account, after inspection of the items. This is evidence upon which a plaintiff may recover, under the count for an account stated, if the jury think it sustains that count.

Verdict for plaintiff.

Gordon, for plaintiff.

Johnson, for defendant.