delivered the opinion of the Court -•
Three points are made for a reversal of this judgment:
First—That the verdict is manifestly against the weight of the evidence.
Second—That the account books were improperly admitted.
Third—That erroneous instructions were given.
The first we can not notice ; there was a conflict between the witnesses ; and even if four witnesses contradicted appellee, the jury had the right to credit him, corroborated as he was. We can not reverse upon the evidence merely because the jury might have found otherwise. This would effectually dispense with the trial by jury.
The book of accounts was properly admitted, and the requirements of the statute were substantially complied with.
The statute requires that the party shall testify to his account book and the entries therein contained ; that the same is a book of original entries, made by himself, and are true and just, and then the book shall be admitted as evidence. (Laws of 1867, sec. 3, p. 184.)
This section is a repeal of the common law rule as to the admissibility of an account book. It is conceded that the" statute was complied with in every respect, except that the witness did not state that each item of the account was true and just. When the book was exhibited, he did testify that the account was correct.
The objection is trivial, and a mere play upon words. The witness need not testify in the language of the statute ; a substantial compliance is sufficient. The statement that the account was correct, was equivalent to a statement that it was true and just.
There is no error in the first instruction. It is not susceptible of the division attempted to be made of it—that one part fixed the liability of the defendant by a sale and delivery of the lumber, and that a subsequent part made the defendant chargeable by the mere delivery to the agents or employees, and the use of it in the erection of the church. The instruction must, and most naturally would, by the jury, be taken as a whole. Its plain import is, that there must be a sale to defendant, a delivery to it or its agents, and the appropriation of the lumber for its benefit before it could be charged. In this view it was clearly right, and contained more than was necessary.
The objections to the second instruction are not well taken. There was sufficient evidence upon which to base it. It was proved that, on the day mentioned in the instruction, one of the trustees ordered materials and agreed to pay for them on the first day of January following, with ten per cent interest. The instruction assumes no fact; it simply informed the jury that if they believed, from the evidence, that any materials were furnished after such a date, and the agreement was to pay interest thereon, then it should be computed from the date of delivery.
The third instruction is complained of because it authorized the jury to find a verdict upon other evidence, independent of the account book. Surely, the jury have the right to discriminate as t<5 the evidence, and give it such credit as it deserves. There was some proof of an erasure in the book of entries. In view of that fact, the plaintiff had the right to ask the court to tell the jury that if they believed, from the evidence offered, that the plaintiff sold the materials to defendant, they must find for plaintiff, without regard to the manner in which the books had been kept. But any possible misconception pf the instruction was fully prevented by the instructions given for the defendant.
The judgment of the court below is affirmed.
Judgment affirmed.