M'clure Elder v. Byrd

Case, for goods, wares, and merchandise sold and delivered; plea,non assumpsit, and issue, c. — The plaintiffs resorted to various modes of proof to establish the account, — some items by disinterested testimony; other articles were proved to have been charged, in the handwriting of a clerk who did business in the house, and who was dead. Two charges, in the handwriting of the same clerk, did not specify the goods delivered, but stated the amount *Page 22 as per bill. The plaintiffs proved by their own oath, to the amount of $75 (the most that is allowed by the act) under the Book-debt Law, 1756, c. 4, Ird. 171.

Some dispute arose, in what manner the oath should be taken, when the Court directed it to be taken thus: "the evidence," c. (as usual), concluding thus: "agreeably to the book-debt law." The act directs that the person taking the oath shall swear he has given all just credits. The debits amounted to between five and six hundred dollars. The credits amounted to about $400, leaving a balance of about $200.

It was insisted by the defendant's counsel, that deducting the two lumping charges, which could not be allowed, and giving the credits, which were admitted by the plaintiffs in their oath under the book-debt law, the plaintiffs would be indebted to the defendant.

Some orders given by the defendant were produced by the plaintiffs, as evidence of demands to their amount. If the defendant avail himself of the amount of credits, stated and admitted in the oath of the plaintiffs, he must also admit all the debits; he cannot take one part of the statement without the other. Evidence of the handwriting of the clerk, who is dead, is proper to all the charges; and it also appears that the orders which had been taken up are evidence of advances to that amount.

Orders for the delivery of goods, when taken up, are not of themselves evidence of the delivery of the goods; and this results from the course of mercantile business. When an order is given, nothing is more common in practice than to deliver the goods at different times, as they are wanting. The order *Page 23 is sometimes taken and charged before any goods are delivered.

We all agree in admitting the handwriting of a deceased clerk as to the first items where the goods were specified. And where there is a lumping charge, if a bill of particulars were delivered, it seems to be sufficient. But it would seem that a lumping charge, without a bill delivered, would not be good; and the reasons seem obvious. Every person should keep his books in such a manner that the person charged may see an amount of the goods charged, by which means he will be able to ascertain whether he had the goods or not. And where such an account is exhibited against him, in an action at law, he will be able to defend himself, which he could not otherwise do, unless he had previously received a bill of particulars. Therefore the evidence of the general charges ought to be received, because it is stated per bill.

If the plaintiffs insist upon the amount of credits disclosed under the book-debt law, they must take with it the amount of debits, — altogether, or none.

Verdict for the plaintiffs for the balance of the account.

thought the orders ought not to be received as evidence in this case, where goods were delivered. He agreed with Humphreys, J., as to admitting proof of the handwriting of the clerk; and gave no opinion, whether the defendant was obliged to admit of the amount of debits, upon insisting on the amount of credits.