Franc v. Hewitt , 7 Cal. 186 ( 1857 )

Murray, C. J.,

delivered the opinion of the Court—Terry, J., concurring.

On the trial of this cause in the Court below, the plaintiff, to maintain the issue on his part, introduced in evidence a book, in which he kept his accounts, and made original entries of his daily transactions. It was shown that he was a Frenchman, doing a small business as an upholsterer; that he kept no clerk, and that his books were correctly kept.

The defendant does not seem to deny the correctness of the account, or the delivery of the articles, but alleges that they were, sold, and the credit given to another, and therefore she is not liable. This was a qestion of fact for the jury, which they have found adversely to the defendant, and as the evidence is conflicting, we will not disturb the result.

The erasure in the book was sufliciently explained to entitle it to be admitted in evidence.

It is true, as a general proposition, that the account-book of a tradesman is not admissable to establish a charge for money loaned, but in this case it is shown in fact that there was no money loaned, but that the plaintiff procured some articles for the defendant, which he paid for, and charged as so much money loaned.

Again, it is contended that account-books are not admissable to prove a single item. Granting the principle, the evidence shows that the plaintiff sold the defendant a bill of goods, which she was several days in purchasing, and that he only entered the charge after all of the order had been filled. But, as before remarked, the main defence is, that the credit was given to another person, and not that the items are incorrect.

Judgment affirmed.