Smith v. Smith

This action was brought to recover a balance of an account due for coal and fish furnished by the' plaintiff to the defendant upon the latter’s request. The items of the account were disputed by the defendant, and' upon this point the evidence of the parties was in conflict. This condition presented a disputed question of fact for the' referee’s determination, and his decision thereon is conclusive upon this court. The main reliance of the defendant upon this appeal is that the books containing the account were improperly admitted in evidence. The coal, which furnished the bulk of the bill, was weighed at the scales by plaintiff and the quantity entered upon a slip of paper at the time ; subsequently the item -was transcribed by plaintiff’s wife under his direction into the book kept by him. Plaintiff and his wife both testified that the items thus entered were correctly entered and correctly represented the transaction. There was also some "testimony independent of the plaintiff’s to show that in fact coal was. delivered by the plaintiff to the defendant, and that some was delivered is undisputed by the defendant. The relation sustained by plaintiff’s wife to the transaction-did not constitute her a clerk within the rule established by the decisions. (Atwood v. Barney, 80 Hun, 1; Taggart v. Fox, 11 Daly, 159.)

The defendant’s main contention, however, is that no foundation was laid for the admission of the books in evidence, as there was no competent testimony by any persons who had settled with him to show that the plaintiff kept fair and honest accounts. -The plaintiff called two witnesses upon this subject. Mr. Havens testified that he had settled with the plaintiff by his books yearly for eight or ten years; had always found the books correct to the best of his knowledge. On cross-examination he testified to the extent of his dealings and stated that the only reason he knew the accounts were correct was because he had confidence in plaintiff and paid what he asked. *209Being re-examined he said he remembered what he ordered and paid for what he believed was right, but that he relied upon' the plaintiff’s honesty and not his (the witness’) recollection. Mr. Halloek testified that he had dealt with the plaintiff, bought coal upon credit and settled with him according to his books, and according to his own, four or five times, and had always found them correct. It appeared on cross-examination that this witness was bookkeeper for the firm of Bishop & Halloclc, the junior member of the firm being the father of the witness ; that his father ordered most of the goods charged, and that the account was not against the witness personally. We think the latter Whs competent to testify upon the subject. While the charge was not against the witness personally, yet he had knowledge of some of the items and kept an account, the settlement was made from the plaintiff’s books and books kept by the witness, as we-infer, of the same transaction. The testimony, therefore, bore directly upon the subject of the correctness of the plaintiff’s books, and witness’ knowledge related to them although the account was against another party. We think that in principle the present case is brought within Matter of McGoldrick v. Traphagen (88 N. Y. 334), and that.the testimony in this respect was sufficient to authorize the reception of the books in evidence. This case is clearly distinguishable from Beatty v. Clark, (44 Hun, 126). In that case neither witness saw the books or settled therefrom. The bills which, were used in one case were not shown to have been copies from the books, and there was no evidence that the party kept correct books-Respecting any inaccuracies which were shown to have existed in the plaintiff’s account, appearing in the books, it did not show conclusive reasons for the rejection of the books. That matter became a question for the referee to determine to what extent he would regard the claim as established by the books. This related to the weight of the testimony, not its competency.

We have examined the other questions raised by the appellant and find no error or merit therein.

The judgment should be affirmed, with costs.

All concurred.

Judgment affirmed, with costs.