Butler v. Cornwall Iron Co. , 22 Conn. 335 ( 1852 )

Church, C. J.

Many of the points, suggested by this re-

port and remonstrance, will be passed by, with no other notice, than saying, that they furnish no good reason for objection to the conclusions of the committee. Others deserve a more considerate attention.

1. A principal question, urged and argued in the superior court, under the first exception to the report, we need not now discuss, as we have but a few days ago disposed of it, in Hartford, in the case of Hedge v. Clapp, ante, p. 262. But, in addition, it is now said, that the plaintiff, having called Scovill, one of the respondents, and made' of him certain inquiries, and heard his answers, may not call other witnesses, to prove that he had, out of court, given a contra-' dictory or different representation, from such as his answers, under oath, import.

That a party may not impeach the general character of his own witness, is true. And, that he may prove his own witness to be mistaken, and incorrect in the facts sworn to, is also true.. The precise question here intended to be raised, we do not find it necessary to decide; for, from the view we have taken of the claim of the • plaintiff, to the compensation referred to, the result could not be affected.

2. The Cornwall Iron Company object to Butler’s claim of compensation, of one per cent, for executing, with others, a-bond of guaranty to the Bridgeport Bank, and to the allowance of it, by the committee. And the objection should be sustained.

The only agreement or arrangement, giving countenance to this claim, was made by Butler, Scovill and Rexford, privately among themselves. They were, to be sure,' directors of_the company; but it does not appear, that they acted as such, in making this arrangement. Merryfield was also a director, but he had no notice of any such meeting as was had by his associates, nor of any such purpose,'when it is said the agreement was made. The circumstances all conduce to show, that there was no official action on this subject, which could give Butler a right to claim, or oblige the corporation to pay, the allowance claimed, for executing the bond referred to. The sums allowed by the committee, to Butler, and to Scovill and Rexford, must, for the reasons suggested, be expunged from their respective accounts or claims.

5. The fifth ground of exception is rendered immaterial, by the advice which we give to the superior court, that the title to the property which constituted the consideration of the note in question, be confirmed in the plaintiff.

6. There seems not to be any material question, involved in the sixth objection to the report. The committee say, that the accounts of the several parties and firms, with which the litigants have been connected, in their business operations, are so interwoven and intermingled, that it would be almost impossible to settle one account, without investigating other accounts, at the same time. We can, in this case, easily see how this may be. No fact appears, to show any error in such proceeding, nor is it claimed, that, from the mode adopted by the committee, any injury has resulted to any party. There can not, therefore, here be any propriety in our interfering.

8. The inquiry made of the witness Dickerson, whether Butler could have worked on the wheel in question, without the knowledge of the witness, was properly rejected by the committee. Such questions are often put and answered, but are improper. It is for the witness to state the facts, and his means of knowledge, and for the triers, from these, to determine, whether the act sworn to, or the language said to have been used, as the case may be, was as claimed, or could have been.

9. Upon this exception, it appeared that the books of the firm of Butler & Co. contained charges of articles of property, sold and delivered by said firm, to the Cornwall Iron Company, and charged on the books by Chadsey, one of the members, and the book-keeper of the firm, who, at the time of the hearing before the committee, resided somewhere in the state of New York, and was not produced as a witness. These books had been duly kept, with day-book, journal and ledger, on which these articles appeared, in all respects properly charged. In addition to this, the sale and delivery of almost every article, thus charged, were proved, in conformity with the charges, either by the testimony of Butler, or the admission of the respondents themselves; leaving for dispute, a comparatively small amount, in value, of the articles thus charged. And the defendants objected, that, for these there could be no recovery, because Chadsey, the book keeper, was not called as a witness, to prove the charges, and delivery of the articles.

The question here raised is the same as if Butler & Co. offered their books in evidence, in an action of book-debt against the Cornwall Iron Company.

It was not claimed by the plaintiff, that the books alone, unsupported by the strong collateral and corroborative proof of their correctness, were, as matter of law, proof of the sale and delivery of every article charged upon them, but that they furnished legitimate evidence for that purpose, although the person .by whom they were charged was not present, to testify.

In this state, from its earliest' judicial history, in actions on book, for the recovery of the price of articles usually sold on credit, and charged by merchants, laborers and farmers on their account books, these books have not only been admitted on the trial, but, only in excepted cases, have been required, as furnishing the principal and most satisfactory evidence, and this, not merely in aid of the recollection of the party or his clerk. Sw. Ev. 81. Palmer v. Green, 6 Conn. R., 14. Beach v. Mills, 5 Conn. R., 493. There is a necessity for this, and it has been felt by every business community, as is proved by the laws and usages of various commercial states and nations, by which the books of merchants and others are, to a greater or less extent, relied upon by business men and courts of justice. Book-keeping, even, has become a matter of study and science, growing out of this necessity and these usages. It is not within the power of memory, to recollect the delivery of every article, sold and charged on book, in the usual course of dealings, and it is not expected, either by the vendor or the purchaser; and the very fact, that the customer of the merchant receives a credit upon his books, by way of a known account current, furnishes evidence, that he consents that these books shall he used, as a sort of record proof of the sale and delivery of the property charged upon them,—a part of the res gestee of the delivery; the credibility of which depends upon the appearance of the entries, the manner and usage of the bookkeeping, and the general correctness of charges, as proved by corroborative evidence, as was very convincingly done, in this case. Why should it be considered indispensable, that the book-keeper should be present, to give evidence of the delivery of everything entered upon the books ? He can not remember all, and in many cases, and after a lapse of time, in most, could only testify to the fact of his handwriting, and his practice and manner of delivery and charge ; and in this case, all these were well proved without him. If Chadsey had been present, and had testified only from the books, and not from his recollection of the sale of the disputed items, the books would have been received upon no more satisfactory evidence of their correctness than the committee had without him, and only as raising a fair presumption, in the absence of contradictory evidence, that all the entries upon them had been as truly made, as those which had been so fully confirmed by the other evidence. And this was all that was claimed. And, as raising a reasonable belief, that such was the truth, we have no doubt, that the books, in connection with the other evidence, were properly received and considered by the committee. It is certainly true, that if no article charged on book can be allowed, without full, independent proof of its sale, books of account, as matters of evidence, are not at all necessary. Vid. 2 Phil. Ev., (Cowen & Hill’s Notes,) 682. 1 Greenl. Ev., $ 116, 117, 118, and notes 1, 2, 3, § 120. The question here is very distinct from one, to which the defendants would liken it,—that of entries, made by third persons, who are not dead, and offered in evidence for collateral purposes, or of written memoranda, made by parties, in the usual course of business, even, but not in the nature of book accounts. Treat v. Barber, 7 Conn. R., 274. Dwight v. Brown, 9 Conn. R., 83. Weeden v. Hawes, 10 Conn. R., 50. Stiles v. Homer, 21 Conn. R., 507. These have been considered as a species of hearsay evidence, and, as such, rejected; yet, in many of these cases, the necessity has been so obvious, and the danger of admitting the evidence so improbable, that courts have recognized many exceptions to the general rule of exclusion-

The courts, in the state of New York, and in some other states of our union, have found it necessary to admit the account books of parties, in evidence, where the object of the action was, to recover for the articles charged upon them, or to affect a settlement of mutual accounts, whether the parties, or their clerks, were dead or alive, present or absent, accompanied with the kind of corroborative proof which was heard on this inquiry. Vosburgh v. Thayer, 12 Johns., 461. McAllister v. Reab, 4 Wend., 483. Lawrence v. Barker, 5 id., 306. People v. Genung, 11 id., 21. Linnell v. Sutherland, id., 568. Cole v. Anderson, 3 Halst. 68. This objection, therefore, must be overruled.

10. The next objection grows out of the action of the parties, under a certain written contract for the sale of wood, The defendants, under the contract, had right to cut and coal all the wood standing upon a certain parcel of the plaintiff’s land, at a certain price, per hundred bushels of coal, and to be coaled and delivered in two years from January 1, 1846. Under this, the defendants, and those under whom they claimed, proceeded to cut and coal the wood, and continued thus cutting, beyond the first day of January, 1848, before they completed the entire job, and without any new contract, to continue after that time. And the defendants after the first of January, 1848, cut on the land and made into coal, wood to the amount, in quantity, of 28,289 bushels of-coal, and gave credit to the plaintiff, at the contract price only. For the wood, cut after that time, the plaintiff claimed, and the committee allowed, a higher price, as the then market value of the wood and coal.

It is found, that Butler resided near this wood, was- conversant with the operations of the defendants, after January 1, 1848, and made no objections to the cutting and coaling of the wood, by them.

We do not believe, from the facts disclosed here, that, before this controversy commenced, Butler considered the time specified in that contract for cutting off the wood, as material, and that the defendants, after that time, were trespassers upon his land; he treated the subject differently, stood by, and, without objection, permitted the defendants to proceed, as they supposed they did, under the contract; he thus waived, and intended to waive, all objection, on account of time, in the full performance of it. To give effect to his change of purpose, as since expressed, would be to make the defendants trespassers, who were in fact, proceeding under the license of the plaintiff, lawfully. The amount allowed by the committee, as an excess of price, over that provided by the written contract, must, therefore, be subtracted from the plaintiff’s account.

Finally: the remonstrants complain, that the committee considered and allowed to the plaintiff, various charges, not specified or included in any oyer which he had given to them, under an order of court, for that purpose.

The bill of the plaintiff is for a discovery, and accounting by the defendants, in which, he does not profess to go into particulars; and the foundation of his proceeding is, that he can not; and therefore he calls upon the defendants to do this. And, when he does go into particulars, as is found by the court, it is not by way of original charge or claim, but only as a set-off or defence, made necessary by the claims of the defendants. Manifestly, no order for oyer can reach such charges.

We think, therefore, that the report of this committee should be approved, with the exception of the corrections which we have required.

In this opinion, the other judges concurred.

Report to be corrected and accepted.