Kelton v.Hill , 58 Me. 114 ( 1870 )

Appleton, C. J.

This was an action brought by the plaintiff, as administrator of the goods and estates of Joseph Thompson, on the balance of an account annexed, to which an account in set-off was duly filed.

As the suit is by an administrator, the defendants are not admissible as witnesses generally. They could not testify as to payments, except within the limitations allowed in book-accounts, nor as to any settlements made with the plaintiff’s intestate.

The account-books of a party are admissible, with his suppletory oath to prove a charge of money to the amount of $6.67. As the defendants could not testify generally, their testimony must be restricted to what can be proved by their books and suppletory oath.

The credit of the plaintiff was conceded by both sides to be erroneous. No specific credit was agreed upon. It was left indefinite and uncertain. The amount was left to the jury, and it was for them to fix the amount due from the evidence. There was nothing else upon which they could rely.

The presiding justice instructed the jury “that the book ordinarily would not prove any item of cash payment, above forty shillings, or $6.67; but that as he had instructed them that the plaintiff was not concluded by the entry of credit upon his account annexed, he should and did tell them that they might allow the defendants the amount of their account in set-off inasmuch as it was less than the amount of credit given upon the plaintiff’s account annexed; that the plaintiff would be held to a credit to this amount, and the judge stated the credit, as per book, to the jury, to be about $106.”

As the credit was admitted to be erroneous, and as no sum was agreed upon, it remained for the defendants to prove the items of theft account. The jury could not properly allow the defendants’ account, unless established by proof, merely because it was less than the amount of a credit which had been inadvertently and erroneously given, if there was no proof to sustain it, and when it was denied by the plaintiff. ^Exceptions sustained.

Walton, Barrows, Daneorth, and Tapley, JJ., concurred.