Remick v. Rumery , 69 N.H. 601 ( 1899 )

The exclusion of the diaries altogether was erroneous. They were the plaintiff's books of account, kept by himself as a daily and original record of his transactions and business, and as such they were competent evidence in his favor, in the absence of anything in their appearance or character, or in the circumstances of the case, indicating that they were not kept with honesty and accuracy. Nothing of this nature is found or suggested. On the other hand, the principal contention of the defendant is that the entries against his intestate should be rejected because they are not in such a form as the law requires; and it is upon this ground also that the finding of the referee, "that the entries do not show an intention to charge the deceased with a debt," must be understood to have been based, in view of his additional finding that all of the entries are "not in any usual mode of keeping accounts." It thus being apparent that the books were excluded solely because of the form of the entries therein, it becomes necessary to consider this phase of their competency.

It was decided in the leading case of Cummings v. Nichols, 13 N.H. 420,425, that "there is no particular form in which the book of a party must be kept, in order to its admission as evidence in support of his account;" that it is sufficient if it shows of itself a charge against the adverse party, and the nature of the charge. See, also, Swain v. Cheney,41 N.H. 232, 235.

Testing the plaintiff's entries in the respect complained of by the rule laid down in Cummings v. Nichols, or by a comparison of them with the charges which were held in that case not to be objectionable in point of form, the unavoidable result is in favor of their competency. It is true that in the items for labor, which constitute the major part of the account, no prices are carried out; but their competency as evidence does not hinge upon this fact. The fair presumption is that, when the labor was performed, no price was agreed upon, and therefore its reasonable value may be recovered.

Nor can it be properly held that these entries, and those for groceries also, "do not show an intention to charge the deceased with a debt." The law looks to the substance rather than to the form of things. A statement in one's book that he performed labor for, or furnished goods or lent money to another, ordinarily understood to mean, in the absence of evidence to the contrary, that he intended to charge that person with such labor, goods, or money. An entry in a diary containing daily memoranda of a person's transactions, "P. M. Hauling sawdust for Maleham," is hardly less expressive of an intention to charge Maleham with the labor than it would be if in a formal account book in this form: "Maleham, Dr. To hauling sawdust, P. M." Such entries show the nature of the charge, the date of the labor, for whom performed, its duration and its kind, and we have no doubt of their competency and sufficiency as charges. Certainly, they afford more particulars than are afforded by ordinary time-books, which are held to be competent under the rule in reference to account books. Mathes v. Robinson, 8 Met. 269; Pratt v. White, 132 Mass. 477, 479. So, also, a book containing straight marks, made at or about the time of the delivery of loads of sand, has been held to be competent in an action to recover pay for the sand. Miller v. Shay, 145 Mass. 162. And even marks upon a shingle and notches in a stick have been admitted in evidence. Kendall v. Field, 14 Me. 30. In brief, no arbitrary rule exists, or can be laid down without occasioning a frequent failure of justice, as to the form in which entries must be made to entitle them to be received as charges in favor of the party making them; and, in passing upon their sufficiency, regard is necessarily to be had to his education and his methods and knowledge of business, as evidenced by the entries or through other proper sources.

The result of our conclusions is, that all original entries upon the diaries relating to items of account in issue in this action, whether for labor, for goods, or for money paid or loaned, in sums not exceeding $6.67 (Bassett v. Spofford, 11 N.H. 167; Rich v. Eldredge, 42 N.H. 153, 158; Bailey v. Harvey, 60 N.H. 152), which of themselves show an intention to charge Maleham with the subjects thereof, are competent evidence, and should have been received and considered by the referee.

The plaintiff's testimony in explanation and interpretation of the entries was properly excluded. It would not have been competent at common law, and, the defendant being an administrator, it is not competent under the statutes of this state. P. S., c. 224, s. 16; Stevens v. Moulton,68 N.H. 254.

Report set aside: case discharged.

All concurred.