Dewey v. . Hotchkiss , 30 N.Y. 497 ( 1864 )

The plaintiffs' account books, it is conceded, were properly in evidence. In connection with the oral testimony of the clerks, they established the larger part of the plaintiffs' claim. Being in evidence, the defendant availed himself of them to prove thereby credits in his own favor. These were equally well established, whether they were in the plaintiffs' handwriting or not. The plaintiffs' had brought them forward as their books, claiming for them authenticity and credit, and could not deny their admissibility and force, even when they operated against themselves.

In using them for his purpose, the defendant apparently travelled over their entire contents, selecting his items wherever he pleased, without reference to dates or subject matter, or their connection or relation to the charges read by the plaintiffs. Thus he selected from the day books three different items, each of considerable amount, of the respective dates of May 2d 1848, March 22d 1849, and October 27th, 1849. He selected from the cash book eight different items, ranging between the dates of July 21st, 1848, and November 19th, 1851. He had therefore used the whole of the books indifferently for his purpose. He had taken the entire account between the plaintiffs and the defendant, adopted it for his own benefit, and was not, I think, at liberty to renounce it where it made against him. The books constituted one entire series of accounts between these parties, and, for the purposes of this case, may be regarded as if they contained nothing else whatever — indeed, as if they had all been presented in court by the plaintiffs on a single paper or account current. In such case could the defendant be permitted to cull particular entries from the account and exclude the residue? I think not.

The rule that a party whose oral declarations, in a conversation are improved in evidence by his adversary, is not thereby permitted to introduce in his own favor disconnected portions of the same conversation having reference to distinct and independent matters, has no close application to such a case.

1st. Because the account must be regarded as the single, entire and continuous statement of the party offering it — presenting his version of the true state of the business transactions between the parties — not necessarily entitled to credit in every part, if discredited by other evidence, but admissible for the consideration of the jury.

2d. Because the defendant, having adopted the whole statement by ranging through its entire scope and contents, has given currency to the whole, and has made it necessary to examine and take in the whole, in order to determine how far the portions rejected by him bear upon, affect or qualify the portions selected. There is no evidence that the portions of the account introduced by the plaintiff, after those introduced by the defendant, do not materially qualify the effect of the latter items, and do not in fact relate to the same precise subject matter. And we may presume it to be so, as we can make no intendment against the propriety of the ruling in the court below.

This court has, in substance, affirmed the propriety of this evidence. In Low v. Payne (4 Comst. 248), the plaintiffs' books (properly established by preliminary proof), constituted the only evidence. They contained credits which the defendant insisted upon the benefit of, and the court held him thereby compelled to submit to two charges of cash paid contained in the books, though not properly items of book account. In Pendleton v. Weed (17 N.Y. 76), where the books of two different firms had been put in evidence (in part consisting of different members), the court say: "The plaintiff having given in evidence entries in some of the books of each firm on the question of payment, it was proper to allow the defendant to refer to other entries on the same subject." If a party uses books of account against his adversary, he makes them evidence for him on the same subject. They are like any declaration or admission by writing or orally; if part is used, the whole relating to the same matter is admissible." (Cow. Hill's Notes, 229.)

If it be said this last authority shows that the entries in the different books related to the same subject matter, to wit: the question of payment of a particular judgment, I reply that in this case, the subject matter is the state of the entireaccount between the parties. The parties had made it so by their mode of using the books. The plaintiffs had made the books evidence for themselves of all matters of accounts between the parties. The defendants had selected indifferently and indiscriminately from the mass of materials thus presented to them, all which they supposed tended to their advantage, without reference to their continuity or connection with those proved by the plaintiff. The entire books, with all their entries, had thus come legitimately before the court by the mutual assent of the parties, and they were permitted to cull from them at their pleasure. If we were disposed to take a stricter view of the rights of the parties, there is no evidence that the plaintiffs introduced a single item subsequent to those introduced by the defendant.

If these views are correct, the judgment should be affirmed. If they are not so, the judgment should not be reversed, but corrected by deducting therefrom the items illegally admitted, amounting to $137.49.

Judgment affirmed.