Dailey v. Sonnerborn & Co. , 35 Tex. 60 ( 1872 )

Ogden, J.

There was an error in the rulings of the court below, in permitting the books of J. C. Miller to-be used in evidence, to prove that the articles purchased by him from the defendant, Dailey, were different in items and price from those shown by the testimony of the defendant, which will require a reversal of the judgment.

That the books of merchants and others who keep regular and correct books, may be used in evidence to-prove the articles sold and delivered by such merchant or other persons, can hardly be called in question at the piesent day.

The rule for many years was strenuously resisted by the ablest jurists of the country, as opening a door to fraud and injustice; but a supposed necessity has forced its adoption, and it is believed to be now recognized by nearly, if not quite, all the courts of tills country, and yet that rule is admitted with many restrictions, and subject to many exceptions.

This subject was ably reviewed, and the rule, with the restrictions, definitely prescribed by Justice Wheeler, in Underwood v. Parrott, 2 Texas 171.

It is then confined to the merchant or seller of goods and does not extend to the purchaser.

We have been unable to find any authority which would admit the books of the purchaser, to prove the articles received or the price to be paid. Such are not the original entries, made at the time of the sale and purchase; nor are they the entries of the articles sold, but simply memoranda of articles received.

Goods being transferred from the place of sale to where they are received by the purchaser, are liable to change, deterioration and loss, and it certainly would be unjust to subject the merchant to such risks. Besides, there is a greater possibility that the purchaser may forget the number, or quantity, or price of articles before he receives them, than the seller, who makes the ■entry immediately on the sale. But perhaps the strongest reason why the purchaser’s books should not be admitted as against the seller, consists in the fact "that it would be an additional inducement to dishonesty and fraud, which would thereby place the merchant, or seller, in the power of his debtor.

But this question was definitely settled in the case of Sommers v. McKim et al., in 12 Serg. & Rawle, in which Chief Justice Tilghman says : “ There was no plausible pretence for this evidence. It was not the defendant’s business to keep an account for the plaintiffs. He might do it for his own satisfaction, but not for the purpose of fabricating evidence for himself;” and this -case is referred to with approbation in Cowen & Hill’s notes to Phillip’s Evidence, 3 ed., page 308.

The above ruling was fully recognized by the Supreme Court of Pennsylvania, in the case of Keim v. Rush, 2 Watts & Serg., 379, and followed by this court in the case of Cole v. Dial, 8 Texas, 350; and this has been indirectly sanctioned in several cases since.

We must therefore decide that the admission of Miller’ s books, to prove the articles purchased by him from Dailey, was such an error as will require the reversal of 'the judgment.

It is therefore ordered accordingly.

Reversed and remanded.