Morrill v. Whitehead

By the Court.

The defendant does not appear, by the return herein, to have proved any former judgment between the parties. The return states that the minutes of a former trial, between the same parties, were put in evidence by consent; but what appeared by those minutes is not stated. Unless some adjudication was had upon the merits, such trial was no bar to a second suit for the same cause. A mis-trial, or a discontinuance, would be no bar. So a nonsuit upon the plaintiff’s evidence is no bar to a second action, (Elwell v. McQueen, 10 Wend. 519,) though entered in a justice’s court. Nor, if a judgment were rendered in the plaintiff’s favor in the first action, and that judgment was set aside on certiorari, or an appeal, without a final judgment disposing of the whole case, would such first judgment be a bar to a second suit. We are therefore unable to say, from any thing appearing by the return herein, that there was any error committed below in this respect. The arguments of counsel appear to assume that the former action was tried and submitted on the merits, and that the justice omitted to render any judgment whatever. If this be so, I apprehend that, according to the decision in. Hess v. Beekman, 11 Johns. R. 457, the former action was a bar to the present, but it is not necessary for us to pass upon that question, since it does not sufficiently appear to have been raised by proper proofs.

The other question raised upon this appeal is, Whether the books of the plaintiff’s intestate were properly received in evidence? The case of Vosburg v. Thayer, 12 J. R. 461, shows what preliminary proof is necessary before the books of a party can be received; and subsequent cases have adopted and applied the rule established in that case. (McAl*241ister v. Reab, 4 Wend. 484; Linnell et al. v. Sutherland, 11 Wend. 568; Sickles v. Mather, 20 Wend. 72; Beattie v. Qua, 15 Barb. 132: Foster v. Coleman, 1 E. D. Smith, 85.)

Some of the requisites prescribed in those cases were undoubtedly satisfied; as, for example, that the party whose books were offered kept no clerk; that the books produced were the account books of such party; and that such party kept fair and honest accounts, was testified by a witness who had dealt and settled with him.

Jh relation to this last point there was, in the progress of the trial, some conflict of evidence. But at the time the books were given in evidence, the offer of the books was supported by the uncontradicted evidence of an unimpeached witness, who had dealt and settled with the party, and who proved their correctness; and this was sufficient, so far as relates to this requisite, to warrant their reception. How far the credit to be given to the books was shaken by the testimony afterwards given by the defendant’s witness, was a question proper for the determination of the justice. If the book was properly received, we could not, with propriety, interfere with his finding, upon the credibility of the witnesses, or the weight he ought to give to the books under the conflicting evidence, and yet I feel at liberty to say, that just caution regarding evidence created by the party in interest, in his own favor, would, in my opinion, require that where a book is supported only by the oath of one witness, who testifies that he has settled thereby and found it correct, and is impeached by the evidence of another witness, who testifies that he has settled thereby, or on settlement has examined the same for that purpose and found it incorrect, and that on such settlement the error was corrected; the book ought not to be deemed sufficient evidence to warrant a recovery, unless there is something disclosed which discredits the testimony of such impeaching witness.

But one other requisite, in addition to those above referred to, was necessary to render the books admissible under the cases above cited, viz., proof that some, or at least one of the *242items of charge were in fact rendered; when the account is for goods sold, then that some of the articles were delivered, and when services are claimed for in a course of regular employment, then that some of the services were rendered; and where services are claimed to have been rendered as a physician, the fact of attendance on the defendant or his family, as such, can ordinarily be proved by third parties without difficulty, and some attendance during the period claimed for, ought, unquestionably, to be shown. In this respect there is no reason nor propriety in relaxing the rule.

The plaintiff in this case claimed for services alleged to have been rendered, or rather appearing to have been rendered, so far as the books furnished any evidence thereof, beginning “ in April, 1851, and continuing to 1853and the only proof in relation to the rendering of any service to the defendant was given by the plaintiff’s witness, Bennett, who testified thus: “ I know that Dr. Morrill attended defendant’s family as a physician once, and that was in the year 1849.” Here was a total failure to prove any item in the account sued for. This evidence did not even warrant a presumption that the services charged in the book were rendered. Had a continuous dealing from 1849 down to 1851, or an employment for that period as family physician been proved, so as to create a presumption of general retainer, continued through a course of years, though not in very terms covering the period claimed, there might be some plausibility in holding, that it was prima facie proof of the items charged, or some of them, unless the defendant showed a discharge from such employment. But proof of a single attendance, two years previous to the entries in the book, was wholly insufficient to satisfy the rule, and for this reason the book ought not to- have been received, and a reversal of the judgment is inevitable.

My own opinion of the propriety of allowing entries of work, labor and services, or of sales, whereof the value is sought to be recovered, would confine the evidence taken from the books to the fact, that the labor and services therein charged, *243and the goods therein entered, were in truth delivered or rendered, without permitting the books to be used as evidence of their value; and such is the rule in some of the states. (See the cases collected in 2 G-reenleaf’s Ev. note 2 to § 118.) The value can be proved by third persons, and no necessity exists for admitting inferior evidence, and there seems to me no good reason why the party claiming should not be required to produce other and better evidence of value, which, presumptively, he can do. This species of evidence, created by the act of the party himself, in his own favor, it is uniformly agreed, should be received with caution. (See Hauptman v. Catlin, 1 E. D. Smith, 729.) And where, from the nature of the case, such proof can be had from third persons, testifying under oath, there is no necessity for allowing the books to be used to show the value of the services or goods in question. But I do not find, in the cases above cited, that the rule, as settled in this state, is subject to any such restriction.

Eor the reason above given, the judgment must be reversed.

Judgment reversed.