Opinion
December Term, 1852.
1. A party may give in evidence declarations made by himself and another in regard to, and accompanying the transfer of personal property between them, for the purpose of showing the nature of the transaction; and a fortiori are such declarations admissible to sustain that other person, when he is called on to testify to the transaction, and his credibility is impeached.
2. Where an entry in a book has been adjudged to be admissible in evidence, it is admissible for all purposes, and upon a new trial of the case the decision of the court below, on inspection, is conclusive as to all objections on account of matters appearing on the face of the entry.
(The cases of S. v. Isham, 10 N.C. 185; S. v. Worley, 33 N.C. 242 and S. v. Weaver, 35 N.C. 491, cited and approved.)
THIS was an action of trover, brought to recover the value of a mare, and comes up on appeal, after the new trial granted at August Term, 1850. ( 33 N.C. 305.) On the trial before his Honor, Judge Battle, at CHEROKEE, at Fall Term, 1851, upon the plea of not guilty, the case was as follows: The defendant, Edwards, had levied upon and sold the mare in question, at the instance of the other defendant, under a judgment and execution against one Samuel Lowdermilk. For the purpose of proving that the mare, though in the possession of Lowdermilk, when she was levied on and sold, was the property of the plaintiff, he introduced the said Lowdermilk as a witness, who testified that in the year 1848 the plaintiff sent a stallion by him into the State of Georgia, for the purpose of trading him for a tract of land; that failing in that, he left the stallion with one Collins to make a season, and got from him a horse to ride home; that the plaintiff afterwards applied for the stallion, and Collins refused to deliver him up, unless his horse was returned; that plaintiff then called on the witness and demanded that he should pay him for the stallion, and agreed to give him, and did deliver to him, a horse in satisfaction of the claim on account of the stallion; and that the plaintiff then told him to take the horse out to one Jones,' who lived in Georgia, and trade him for a race mare which Jones had, and which the plaintiff wanted; that he did so, and gave his note to Jones for $30, the difference in value between the two animals; and upon his return, on 7 January, 1849, the plaintiff agreed to give him credit on his books for that amount; that he delivered the mare to the plaintiff in Murphy, and the plaintiff not having room for her in his stables, sent her to the stables of one (65) Manchester, where she remained all night; that the said mare had the scratches, and the plaintiff the next day delivered her to the witness for the purpose of taking her to his house in the country, and curing her of said disease, and to put her in condition for racing; and that whilst she was thus in his possession, the defendants took her away and sold her.
J. Baxter for plaintiff.
J. W. Woodfin for defendants.
The defendants insisted that the mare was in truth the property of the witness, Lowdermilk, and introduced testimony for the purpose of impeaching his credibility, and of showing that the transaction between him and the plaintiff was a fraudulent attempt to defeat Lowdermilk's creditors.
In order to sustain the witness, Lowdermilk, the plaintiff then introduced one Rhea, who stated that he was present on a certain occasion, when said Lowdermilk delivered the horse to plaintiff, and heard a conversation between the parties, in which the plaintiff stated that Lowdermilk had taken his stallion to Collins, in Georgia, and had so disposed of him that plaintiff could not get him back, and he had taken a certain horse from Lowdermilk in lieu of the stallion — all which Lowdermilk assented to; and plaintiff then said to Lowdermilk, that he wished him to take the horse, which was then present, and carry him to Georgia and swap him with Jones for the mare. This conversation was objected to, but admitted by the court. The witness, Rhea, further testified, that he was present at another time, after Lowdermilk's return with the mare, and saw him deliver the mare to the plaintiff, and heard the plaintiff tell Lowdermilk that he must take the mare (which was then present) home with him, and cure her of the scratches and put her in condition for racing. This evidence was also objected to, but admitted by his Honor.
The plaintiff then offered another witness, one Turnbill, who stated that he heard the plaintiff tell Lowdermilk that the mare must be taken to Manchester's stables, as his own were full, and be kept secretly, that he might make a race with one Terry. Manchester was called, and stated that the mare was sent to and kept in his stable one night.
The plaintiff then offered his mercantile books in evidence to show that he had, on 30 March, 1849, given Lowdermilk credit for the (66) $30, as stated by that witness. The books were proved to be those in which all his accounts as a merchant were kept; but the defendant still objected to their introduction, unless the plaintiff could prove that the entry was actually made at the time is bore date, and before the commencement of the suit; but they were admitted by his Honor. Copies of these entries are sent up with the case.
The plaintiff had a verdict, and from the judgment rendered thereon, the defendant appealed.
The case was argued at Morganton at August Term, by
His Honor below very properly overruled the objection to the testimony of the witnesses, Rhea and Turnbill. The testimony of Lowdermilk had been admitted without objection, and upon its being attacked by the defendants, the other witnesses were introduced to sustain it. Their evidence was admissible, not only for that purpose, but would have been so, in chief. It was important to the plaintiff to show that, although the mare, the subject of controversy, was in possession of Lowdermilk, at the time it was levied on by the defendant, Edwards, yet that it was his property. He then was clearly at liberty to show how the mare became his property, and for what purpose he had put the animal into the possession of Lowdermilk; and persons who were present at the transaction and who heard from the parties what that purpose was, surely were competent to prove it. It cannot be necessary to sustain such a position by authority. Equally so was the testimony of Rhea to the conversation between the parties as to the terms of the bailment, as corroborative of the testimony of Lowdermilk, who was his witness to show his title.
The principal objection, however, relied on by the defendants, was the admission of the entry on the books of the plaintiff. This evidence was not offered in chief, but as corroborative of the testimony of Lowdermilk. The latter, at the instance of the plaintiff, as appears by the case, had taken a horse to Georgia, and traded him with one Jones for a race mare, giving to the latter thirty dollars as the difference (67) in value, and upon his return, he stated in his evidence, that the plaintiff, who was a merchant, and with whom he had an account, promised to give him credit on his books for the amount of thirty dollars, as so much money paid on his account. The books were offered to show that in this particular Lowdermilk had stated the truth. This was objected to, and his Honor overruled the objection of the defendant, and admitted the testimony. In this there was no error. It was first objected that the books were not such as were admissible in evidence; and secondly, that the entry could not be read in evidence until it was shown that it was actually made at the time it bore date. It was proved that the books were those in which all the mercantile transactions of the plaintiff were entered, and in which, of course, this entry would be made. The entry was of a character to be made in the ordinary course of business in which the party was engaged, and was against his interest; for it discharged Lowdermilk's debt to the amount of thirty dollars.
It will be borne in mind that the plaintiff's books and the entry therein were not offered in chief, but simply to sustain the evidence of an impeached witness. To answer the second objection of the defendants, and to show this credit and the entry were made by the plaintiff in the regular course of business, extracts or copies of the entries are sent here as a part of the case. With these copies we have nothing to do. Whether the entry was admissible in evidence, was a question of law to be decided by the court who tried the case; and to enable him to do so, an inspection of the book was necessary. And when, in such case, the slightest suspicion of fraud appears upon its face, as that the entry was not made in the regular course of the maker's business, or that it is blotted, or erasures made, or that it appears crowded in, it will be sufficient to cause its rejection. All these, however, are matters of fact, of which the judge below is the trier; and his decision is conclusive, because he decides the question upon inspection, and he has the original before him. His eyes can guide him to a proper result as well as ours can. We are, in such a case, as much bound by the judgment of the court below upon the facts, as we are by the finding of a jury; S. v. Isham, 10 N.C. 185; S. v. Worley, 33 N.C. 242, and S. v. (68) Weaver, 35 N.C. 492.
The last objection remains to be considered; it is, that to entitle the plaintiff to the benefit of the entry, he was bound to prove aliunde that it was made ante litem, and at the time it bears date. Such is not the rule of law. Where the entry is adjudged by the court to be competent evidence, it is to be presumed to have been truly made, subject to be disapproved by the opposite party or the party objecting. If this were not so, it would be almost impossible for any merchant to prove his accounts, when his clerk or the person making the entries is dead; 1 Starkie on Ev., 300. The rule is founded in reason. The same motive which would induce an individual to make an entry against his interest, would usually induce him to make a true one. A false one would be of no value, and the making it would be frequently more troublesome. The date of the entry is as much embraced in the rule of presumption as any other portion of it; and that, according to the case sent us, was before this action was commenced. We see no error in the judgment of the court below.
PER CURIAM. Judgment affirmed.