Rich v. Eldredge , 42 N.H. 153 ( 1860 )

Bell, C. J.

The authority of the court to refer the question of the interest of a person offered as a witness to the jury in a doubtful case, is sustained by the decision of the court in Dearborn v. B., C. & M. R. R., 24 N. H. 179; Bartlett v. Hoit, 33 N. H. 151. The ruling seems to have been in favor of the plaintiff, and he has little reason to complain of it.

The declarations of a person called as a witness, made out of court, are not evidence of his interest in the cause, so as to affect his competency as a witness. They are statements made without oath, and are open to all the objections against hearsay evidence. Martin v. Farnham, 24 N. H. 191. And it is not material whether such statements are merely verbal or are in writing, or, as in this case, letters. The letters of George Rich were not competent evidence of his having an interest in the cause, so as to exclude his testimony.

But George Rich was not excluded. His testimony was received upon the doubts entertained by the court upon the plaintiff’s own letters and the other evidence, subject to the decision of the jury. Though some of these letters were admitted before the question of his admissibility as a witness was referred to the jury, yet their admission would be no ground for setting aside the verdict, if it afterward appeared that they were properly admissible. If the jury, then, found that he was not interested, and so was a competent witness, then these lettei's were competent to contradict his testimony upon the stand. Gerrish v. Pike, 36 N. H. 510. It does not appear, from any recital of the'testimony, that any such contradiction was found to exist; but it may be fairly inferred that his lettex’s did contradict his statements as a witness, since it is said they were offered and admitted on that grouxxd. If the jury came to the conclusion that Geoi’ge Rich was interested as a party, and so incompetent to testify, the letters were admissible, because the admissions of a pax’ty in interest, though not a party to the suit, are equally admissible as if he were such pax’ty. 1 Greenl. Ev. 203, see. 171; Carleton v. Patterson, 29 N. H. 586.

The letters of Keyes were admissible to contradict his testimoxxy, and they were admitted distinctly for that purpose.

The evidence of Buttman was not admissible. He testifies that he made a charge against the plaintiff on the books of-the deceased, by his direction. He does not pretend that he had any knowledge that the charge was proper, except the statement of the deceased. This was mere hearsay, a repetition in writing of a statement made by the deceased, which must stand on the same ground as any other hearsay.

For some purposes the books of account of the deceased, properly verified by his executor, were admissible in evidence. If they were impeached on the ground that the charge in question was not made by the deceased, but by a clerk, and that the clerk should be produced, his evidence might be received, and if he had no personal knowledge of the transaction upon which the charge was made, his evidence that the entry was made in the presence and by the direction of the deceased might be admissible, to show that the charge, though made by another’s pen, was really the act of the deceased. It may be fairly inferred from the case as stated, that this was the view taken of the case. But the book of the deceased, if shown to be in his own hand-writing, would not be evidence of the payment of such a sum as this, as was ruled by the court, nor indeed of any cash payment exceeding $6.66. Bassett v. Spofford, 11 N. H. 267.

It is said to be a general rule, that where an account is rendered, he who receives it is bound to examine it. If he admits it to be correct, it becomes a stated account, and is binding on both parties. If, instead of an express admission of its correctness, the party receiving it keeps the same by him, and makes no objection within a reasonable time, his silence will be construed into an acquiescence in its justness, and he will be bound by it, as if it were a stated account. Phillips v. Belden, 2 Edw. Ch. 1. But the omission of a party to object to an account rendered, raises only a presumption of its correctness, which may be rebutted by proof of any circumstances tending to a contrary inference. Lockwood v. Thorne, 4 Smith (18 N. Y.) 285.

In 1 Story’s Eq., see. 526, it is said, in order to make an account stated, it is not necessary that it should be signed by the parties. It is sufficient that it has been examined and accepted by both parties. And the acceptance need not be express, but may be implied from circumstances. Between merchants at home, an account which has been presented and no objection made thereto after the lapse of several posts, is treated under ordinary circumstances as being by acquiescence a stated account. Between merchants in different countries, if an account has been transmitted from one to the other, and no objection is made after several opportunities of 'writing have occurred, it is treated as an acquiescence in the correctness of the account transmitted, and therefore it is deemed a stated account. The rule is that an account rendered shall be deemed stated from the presumed approbation or acquiescence of the parties, unless an objection is made thereto within a reasonable time. That reasonable time is to be judged of in ordinary cases by the habits of business at-home and abroad. The authorities cited to these points are very numerous. Lockwood v. Thorne, 1 Kern. 170.

The rule as thus stated does not apply in the cases of persons who are not merchants. But some presumption of assent to the correctness of an account rendered, from the silence and acquiescence of the party, without making any objection after a reasonable opportunity has elapsed for its examination, and reasonable time for objecting, arises with more or less force in the case of all persons who can be properly regarded as men of business, considering the nature of their business and education, their local situation,- and other circumstances, such presumptions applying with most force in cities, and being slightly regarded in the country. Here the parties were engaged, as it would appear from the case, somewhat extensively in the business of lumbering, and seem to have been trading men, and we think the instructions of the court on the subject were reasonable and proper.

The exception as to the competency and effect of the auditor’s report is without foundation. The statute is quite decisive. Rev. Stat., ch. 189, sec. 5. “ If either party is dissatisfied with the report, the case may be tried by the jury, and such report shall be given in evidence to the jury, subject to be impeached by evidence offered by either party.”

On the exception as to Buttman’s testimony,

Verdict set aside.