Mudd v. Turton ( 1846 )

Archer, C. J.,

delivered the opinion of this court.

According to the views which we entertain of this case, we do not consider it necessary to express any opinion in relation to the sufficiency of the oath of the plaintiff, to lay a foundation for the introduction of secondary evidence, because we consider the evidence offered in the first bill of exceptions as primary proof.

The defendant having, on notice, produced an account against the testator, rendered to the defendant by the plaintiff, commencing on the 12th November 1841, and terminating on the 21st August 1842, with the death of the testator, for medical services, the plaintiff offered the said account as evidence, that during the period embraced in it, ho had not, charged in said account for medical services to the negroes in dispute. The question for consideration is, therefore, whether this account was evidence, admissible for the purpose for which it was offered ?

The account contains no charges for medicine, and attendance on the negroes in dispute, by name; and the difficulty arises from the entries in the account, from the 20th of March to the 5th of April 1842, in which sundry visits and medicines are charged for a negro child, to whom, no name is given in the account. As to all other items in the account, amounting to $611, and embracing a period of about nine months, the names of the members of the family are given, for whom the services are rendered.

Whether the negro child, not named in the account, to whom services were rendered, was one of the negroes in. dispute, was a question of evidence for the jury; and it was competent for the defendant to have proved the fact, if it were so. The admission of the account, as evidence of the contrary, did not preclude such proof.

The account shows, that the defendant’s testator had a considerable family of negroes, there being charges in the account for attending ten, and it states in every instance, the names of the persons attended, except in the particular instance adverted to. Under such circumstances the presumption would be, that the attendance and medicine was furnished to a child whose name was unknown; or to one who might not have been named. Again, the account contains no charges for attending the negroes in dispute, anterior to 1841, for services which are proved to have been previously rendered. The abandonment of such charges, of which the account is evidence, would naturally lead us to believe, that the charges in question were not against either of the negroes in dispute, when by the agreement the plaintiff was as much bound to abstain from the one charge, as the other.

We have not deemed it necessary to enquire, on this exception, whether the evidence offered would have been secondary evidence of the contents of the plaintiff’s books, because we consider the account as primary evidence of the fact, which it was offered to establish. The agreement between the parties was, that he should make no charge; or in other words, make no claim, after the date of the agreement, for attending these negroes. If the books had been adduced, and contained charges, they might furnish strong evidence, that no such agreement as the plaintiff relies upon, was ever made; but they would not prove a non-compliance with the agreement; if one had in fact been made. Provided no claim was made on the testator or the defendant for such charges, the agreement, as we have said, being, according to tire true interpretation thereof, that no claim should be made.

Nor is it any objection to the admissibility of the account in evidence, for the purpose for which it was offered, that the account was made out by the plaintiff. The enquiry is, did the plaintiff claim for services for the negroes, within the dates of the account. The account furnishes the best evidence of what he did, or did not claim. The enquiry is, in relation to an act of the plaintiff, and he can certainly prove what he did do. Had he given a receipt in full, or a release, for every service rendered these negroes, as it was rendered, it could not be contended, that such receipt or release would not, although made by himself, be evidence to show, that he made no claim for such services. If this he so, assuming the law to he, that the account furnishes evidence of that for which it was offered, it is equally clear, that no objection could be taken to it, on the ground suggested.

We therefore think the court were right in admitting the account in evidence, for the purpose for which it was offered.

In the second exception, objection is taken to the refusal to grant the prayer offered by the defendant, and in giving the instruction which the court gave.

It is conceded, and is certainly the law, that if a valuable consideration was given by the plaintiff at the time of the agreement, that such consideration would be as available to pass the title, as if money had been paid; and if there was evidence that such valuable consideration passed from the plaintiff, then the prayer ought not to have been granted, because the plaintiff has excluded from the consideration of the jury, a material fact, upon which the title of the plaintiff depended. Now it is clear to our minds, that there was evidence of sucii valuable consideration, passing from the plaintiff.

By the obvious construction of the agreement, the medical bill, which was to be surrendered, was the bill which had arisen anterior to the date of the contract. The bill subsequently to be made is not that referred to, for the agreement makes the express provision with regard to that, that he must make no charge against them for that time, which would have been wholly unnecessary if the true construction of the agreement was such as is contended for. The proposition to relinquish this existing medical account, was acceded to by the plaintiff, and by doing so, he gave up all right to recover the same, as effectually as if he had given the defendant’s testator a receipt therefor. By thus surrendering his medical account, he passed to the defendant’s testator a valuable consideration, just as available as if he had paid him in money, the amount of the account.

From the above views we are of the opinion, that the court below were right in rejecting the prayer of the defendant, in the second bill of exceptions.

The next and last enquiry is, whether the court were in error in granting the instructions ivhich they gave in tins exception ?

This instruction makes the right of the plaintiff’s recovery to depend, on the existence of an indebtedness for medical services anterior to the contract, on the agreement to relinquish such claim, and on the finding of such relinquishment. As to each of these facts evidence had been offered. The witness first examined, proved, that the plaintiff had attended these negroes before the date of the contract, and that he agreed to the proposition of the testator of the defendant, to surrender such bill; or in other words, that he should have them for the medical bill: and we have seen, that by such agreement he did abandon his medical bill, as effectually as if he had given an acquittance therefor. We therefore think the court committed no error in their instruction.

JUDGMENT AFFIRMED.