Witherell v. Swan , 32 Me. 247 ( 1850 )

Howard, J.,

orally.—Was the book admissible? This sort of proof is not known in some of our States. It is not known in any other country. It is an invasion of the old maxim, “ nemo in suapropria causa, testis esse debet”

The book of a plaintiff, in order to be admitted, should be the original, and made at the time of performing the service.

The evidence of these facts must necessarily come from him. It must be in his handwriting. The present plaintiff testified to all these facts, and also that he did the surveying. The book must also show the amount of the claim. No particular form is necessary. The book states the quantity surveyed. The statute fixes the price.

It is objected that it is not appropriately an account-book, such as the law can admit in evidence. But we consider a book sufficient for that purpose, if it be kept intelligibly, fairly and truthfully.

It is also objected that it was not kept, and the entry was not made, for the purpose of charging the defendants. But the plaintiff testifies that that is his mode, and his only mode of charging.

It is further objected that the plaintiff did not testify that he had not received pay. This objection cannot prevail. The proofs made aprima fade case, competent for the jury to act upon. If defendants would rely on payment, they might inquire of the plaintiff, ~or prove it from other sources.

Another objection is, that the plaintiff’s case admits of better evidence. True, it might in some instances be so. But, as stated in the plaintiff’s argument, it is difficult to see hour either the buyer or seller, or any other person could, except from the book itself, fix the quantity surveyed.

The book seems also to be sustained by some peculiar safeguards. It was made under an oath of office, and for the security of many interests, and it contains many minutes not usual in books of account. There were' high inducements for keeping it correctly.

We feel bound then to hold the book admissible, notwithstanding the objections offered.

We come then to consider the instruction given to the jury. The statute imposes upon the buyer the obligation to pay for .the surveying. The objection to the ruling is, that the book was made evidence of the quantity of lumber sold. As an isolated -proposition, the language would seem unsustainable ; but taken in connection with the facts of the case, its fair -construction is, that the jury were instructed, if they believed the witness, to assess damage, at the statute rate, for surveying so much lumber as appeared by the book to have been surveyed by the plaintiff, deducting the credits on his bill of particulars. Thus understood, the instruction was substantially correct. Exceptions overruled.