Slade v. Nelson

By the Court.

Benning, J.

delivering the opinion.

Slade, the plaintiff in error, had the right, by the articles of agreement, to receive payment from the Nelsons for one-half, of the “ net expense” he incurred in finishing the building, &c.

In order to show what the net expense was, he offered to, prove the value of the work. This he was not allowed to dc,. by the Court. Ought he to have been allowed to do it ?

■ "We think not, the circumstances being such as they were» The expense a man incurs in building a house, may be less- or it may be greater than the value of the house. This is obvious. Value and expense, in such a case, are therefore not synonymous terms.

[1.] If Slade had shown that, for some reason, he could: not prove what was the net expense to him of the building, &c. it doubtless would have been his right to bring forward evidence of any sort, from which an inference of the probable net expense might be made. He, however, had laid no foundation for the introduction of this, a sort of secondary evidence.

A party’s books of account are admissible for him on the' ground, alone, that there is no better evidence to which he can resort. If he has other means of proving the account, he cannot resort to his books. And he has other means of proving it, when there exists a witness by whom he can prove it.

In the present case, every item in the account — an account consisting of a number of items, amounting, in all, to over $800, except two or three of small amount, is such as shows, of itself, that some witness exists by whom it can be proved, if true.

The plaintiff in error offered nothing as an excuse for having failed^to call such witness; he did not offer to show the death of such witness, or his removal beyond the limits of the State, or to show the existence of any other obstacle that would prevent a resort to such witness.

And then the account, itself, was made out ledger-wise, and it may, perhaps, have had upon its face other marks of suspicion.

The Court below would not receive the book in evidence, but the reason why the Court would not, does not appear.

Upon the whole, we cannot say that we think that the Court erred in excluding this book of account.