Dodd v. Mayson

Brown, C. J.

1. It is a well settled rule of law that a receipt in full of a merchant’s account is not conclusive, but it may be rebutted by evidence which satisfies the Court and jury that an item of the account was left out by accident, mistake, or the like.

2. It was not denied in this case that the receipt in full was genuine, and was given by the book-keeper of the plaintiffs. But it was insisted that it was given under a misapprehension of the facts, and that a barrel of sugar which was not embraced in the account, to which the receipt was intended to apply, was left out by mistake, growing out of the fact that the entries upon the blotter of the day on which the sugar was delivered had not been transferred to the ledger. The defendant swore that when he got the sugar, he went to the railing around the book-keeper’s desk, near the door, and saying, “ here, I will pay you for the sugar,” he laid the money on the railing and came out. On cross-examination he stated that he could not remember who were there at the book-keeper’s desk when he laid the money on the railing; there wei’e several men inside the railing, near the desk. but he could not name one of them, and could not swear positively that the attention of any man connected with the house of plaintiffs was called to the money when he laid it on the railing.

To rebut this evidence of payment, as well as the receipt, each of the partners of the firm, and all their clerks, were sworn as witnesses for plaintiff, and each testified that defendant did not pay him for the barrel of sugar. The bookkeeper (Mr. Ford) swore that the items in the receipted account were taken from the ledger, and that the reason the item of one barrel of sugar did not appear on the account was, because that item had not been posted from the blotter to the ledger. The ledger was then tendered in evidence to show that at the time the receipt was given to defendant the sales of the day on which the barrel of sugar was shown to have been bought, had not been posted from the blotter to the ledger. The correctness of the entries being sworn to by Ford, the book-keeper, the Court permitted the ledger to go in evidence to the jury. Plaintiffs then offered in evidence the blotter to show that on the day on which the barrel of sugar was shown to have been bought, there was upon it an entry of a barrel of sugar and a barrel of flour, and that the item of one barrel of flour was erased with red ink, and offered to prove by Ford that the entry was made at the time the goods were purchased; that he first entered the two items, the barrel of flour, and the barrel of sugar, that a moment or two after he made the entry, Howell, the salesman, told him the barrel of flour had been returned, and he immediately drew 'a red ink mark across the item, “one barrel of flour.” The Court ruled out, both the blotter and this evidence of Ford, as to the time when the entry was made, and refused to permit the jury to consider either. We think this was error.

No objection had been made to the introduction of the ledger, on the ground that plaintiffs had'not shown that they kept correct books, and it had gone in evidence to the jury. The blotter was the book of “original entries,” and we can see no reason why the ledger should have been admitted and the blotter excluded. Indeed, we thiqk both should have gone to the jury, together with the evidence of all the witnesses who had been sworn, and that Ford should have been permitted to testify as to the time when the entry was made upon the blotter and the circumstances under which it was made, in connection with his statement that he did not receive payment for the barrel of sugar at that or any other time. ■

As the question in dispute in this case was, whether the sugar was paid for on delivery, and the evidence was in conflict, I see no reason why the entry made by the bookkeeper upon the blotter at the time of the purchase was not admissible in corroboration of the evidence of the salesman and book-keeper, as part of the res gestes. In any event, we are all agreed that the Justice’s Court erred in rejecting the evidence, and the Superior Court erred in dismissing the certiorari. We therefore reverse the judgment of the Superior Court, and direct that a new trial be ordered in the Justice’s Court.

Judgment reversed.