President of the Union Bank v. Knapp

Putnam J.

delivered the opinion of the Court. We are in the first place to consider, whether the books of the bank were competent evidence.

It was said by Lord Kenyon, in Cooper v. Marsden, 1 Esp. R. 1, “ That the rule of evidence was clear, that entries in the books of bankers or persons keeping books respecting their trade or business, could only be proved by the clerks who had made the entries and he rejected evidence of the handwriting of the clerk, who was in India.

It seems to have been taken for granted, in that case, that the books of bankers were to be received in evidence, if properly proved. No other objection was made, but that the clerk who made the entries was not in court to prove them. It was not suggested, that if he had been present and had proved them, the books would not have been competent evidence.

We think the remark, that such books could only be proved by the clerk who made the entries, requires some qualification. If, for example, he had deceased, it seems very clear from the cases cited by the plaintiffs’ counsel, that proof of his handwriting would have been admitted ; and the same judge, in Digby v. Stedman et al., 1 Esp. R. 328, admitted the book of a watchmaker, which was in his own handwriting, as competent evidence in corroboration of the testimony of his servant, who testified to the delivery of a watch charged in the book. In the case cited, of Cooper v. Marsden, the testimony of the clerk might have been obtained. He was living, although beyond seas. In Pennsylvania, proof of the handwriting would be admitted, if the clerk were dead or out of the jurisdiction of the court. Sterrett v. Bull, 1 Binn. 237.

Many cases are to be found, where the entries of servants, stewards, and attorneys, in the books of their principals, or in books kept by and for themselves, have been admitted as evidence after their decease. Thus in Doe v. Robson, 15 East, 32, where the point in controversy was, when a certain lease . was delivered, the charge of the attorney, who had deceased, was admitted, to prove that it could not have been written when it bore date.

In Lewis v. Norton, 1 Wash. 76, it is laid down as a general proposition, that “ ever since the decision in Lord Tor rington's case, the law has been settled, that a book of accounts in the handwriting of, and kept by, a clerk who is since dead, is proper evidence upon those facts being proved.”

The case cited by the plaintiffs’ counsel, of the Assignees of Sir Stephen Evans v. Lake, Bull. N. P. 282, is strong to this point. The question was, whether eight shares which Lake had purchased in his own name, were in truth for the account of Evans. Six of the receipts were in the hands of Evans, upon which his bookkeeper, who was proved to be dead, had made memoranda referring to the book of Evans, wherein was a charge of the payment of the money by Evans. The book was admitted not merely as to the six, but likewise as to the two which were in the hands of Lake’s son.

So a memorandum upon a paper purporting to be a copy of a license, made by a merchant’s clerk who was deceased, was admitted as evidence tending to prove that he had sent the original, according to his usual manner of transacting the business. ‘Hagedorn v. Reid, 3 Campb. 379.

So the entries of a steward, who had afterwards deceased, of sums paid by trespassers, were, held competent evidence in a cause relating to the title of his master. Barry v. Bebbington, 4 T. R. 514.

The case in our own books, of Welsh v. Barrett, 15 Mass. R. 380, is to tne same point. There the memoranda of a messenger of a bank who had deceased, was admitted as tending to prove notice to indorsers.1

And there is a peculiar reason in the case at bar, why the nooks of the bank should be given in evidence, for the bank furnishes transcripts of them to its depositors ; which in effect operate as the mutual acknowledgment of the parties as to their money dealings. In this respect it is like the case of Wiltzie v. Adamson, where Lord Kenyon admitted in evidence a book kept by servants at an inn, for articles, delivered to a club, it appearing that the members of the club had access to the book. 1 Phil. on Ev. (6th ed.) 252. And we are of opinion, that the books are to be open for the several depositers, and that the bank is bound to produce them on all proper occasions.2 The officers of the bank having the charge of the books, are to be so far considered as agents for both parties.

But it is objected, that Nathaniel Emmons was not a competent witness to prove the entries made by him in the leger which he kept, on account of interest. In answer to the question, whether he expected to gain or lose by the event of the suit, he said, “ that he did not know whether he was accountable or not, and if this money should be lost he would sell his house or any thing else, if required by the bank.” He said, “ the error was of his making.” If it was error only, and not a breach of trust, he would not be liable for it. President &c. of Union Bank v. Clossey, 10 Johns. R. 271. It was also, at most, a conditional liability, depending upon the requisition of the bank ; which it is not to be presumed would be made in a case of mere mistake, and which if made would be fruitless. The witness was under a mistaken notion that he was bound in honor to compensate for his innocent mistake ; but such an opinion does not disqualify a witness.3 Pederson v. Stoffles, 1 Campb. 146. It must be a direct interest which is to render a witness incompetent. Ibid, in notis.

But it is further objected, that the clerk who made the entries in the blotter is not produced ; and therefore that the blotter should not have been admitted in evidence. But it is alleged, and not denied, that he has become insane. If he were dead his handwriting might be proved, as was done in the case of the clerk who kept the journal, and who has deceased. Pitman v. Maddox, 2 Salk. 690. His insanity renders him as unable to testify as his death would have done. His handwriting was therefore properly proved by another witness.1

The objection that the entries were not made by the persons who paid out the money charged, we think ought not to prevail, because according to the course of the business the correctness of the charges of the bank is to be ascertained by the depositer from his checks, which are delivered up every month when his bank book is settled ; and if he is careful to preserve his bank book, he has the means of detecting any error. The credit which is given to him, being in the handwriting of some one authorized by the bank to make it, is as obligatory upon the bank as a formal receipt given for every sum deposited would be. The books, having been authenticated, as before stated, were properly submitted to the jury as competent evidence, and they were the judges of the weight of the evidence.

It will be perceived, that this decision does not touch or enlarge the doctrine of the admissibility of the books of a merchant or other person, who makes the entries himself, and who is permitted, according to the practice in Massachusetts and in most, if not all, of the New England States, to make his suppletory oath respecting the charges.2 In regard to cash, the sums to be proved in that manner have been limited in this State to 40 shillings, or 6 dollars 66 cents.3 But this decision proceeds upon the ground before stated, warranted by the authorities of the common law, and independently of our local usage, which admits the party in certain cases to verify his books of account by his own oath.

There is however another matter of defence which we think a sufficient answer to this action, and that is the statute of limitations.

It appears that the supposed mistake was committed in November, 1817. The defendant has pleaded, that the cause of action accrued more than six years prior to the commencement of this suit. The plaintiff has replied that the defendant has promised within six years ; and he contends that the account is open, mutual, and running, from that time until January, 1824. If that is true, the law is well settled, that every charge within six years is to be considered as an acknowledgment that there is an unsettled account, and as evidence of a promise to pay the balance. Thus in Catling et al. Ex'rs v. Skoulding et al. 6 T. R. 189, the testator was an attorney, and his demand against the defendants was for rent. The defendants filed a set-off for articles of merchandise furnished by them as vintners and tallowchandlers. But the case finds expressly, that there never was any settlement of accounts between the testator and the defendants. It appeared that the last half year’s rent on one side, and one or two articles of merchandise on the other side, were charged within six years. Lord Kenyon delivered the opinion of the court, and said, that “ every new item and credit in an account given by one party to the other is an admission of there being some unsettled account between them* the amount of which is afterwards to be ascertained ; and any act which the jury may consider as an acknowledgment of its being an open account is sufficient to take the case out of the statute.” And he made the proper distinction between that case and the case of Cotes v. Harris, Bull. N. P. 149, where the items were all on one side ; holding that in such case the • last item within six years should not draw after it those items which were of longer standing.1 This case seems to us to have been rightly decided.

But we do not think that the facts in the case at bar do prove this account to have been open and running from November, 1817, to January, 1824. On the contrary, it is proved that the accounts have been stated and settled monthly, and that the checks, which were the vouchers for all the charges against the defendant, were then given up. It is contended, however, by the counsel for the plaintiffs, that as the accounts did not exactly balance each other at the end of each month, and as the money was not in fact paid by the one ‘to the other party who happened to be the creditor, but the differences were carried forward from time to time, therefore the accounts must be considered as open and running on, notwithstanding those monthly settlements ; and we are referred to the case of Farrington v Lee, 1 Mod. 269, and 2 Mod. 312, as authority for that position. That was an action of assumpsit, grounded upon an account which had been stated more than six years before.

The defendant pleaded the statute of limitations. The plaintiff replied that the account was between merchants, and concerned trade and merchandise, and so was excepted from the operation of the statute ; but the court gave judgment for the defendant; and held, that where the account is once stated, (as it was in that case,) the plaintiff must bring his action within six years. That was decisive of the case in favor of the defendant. But the court undertook to settle a point not required to be decided in that case, which is now relied upon by the counsel for the plaintiff, viz. that “if the account be adjusted, and a following account is added, in such case the plaintiff shall not be barred by the statute, because it is a running account.” But to what is the following account to be added ? Not to the former ac count as it stood, but to the balance of the former account as it had been settled. That balance constitutes one of the items of the new account; and if the new account shall run on mutually to a time within six years, that balance, although arising more than six years before, will be saved and drawn out, as it is sometimes expressed, from the operation of the statute, by the charges which are within six years. If that case is to have this construction, it is to be supported, and is conformable to the doctrine laid down by Lord Kenyon, in Catling v. Skoulding, before cited. For example, suppose that the balance of the account stated in November, 1817, had been carried to a new account, which had continued to run on mutually until January, 1824, without any intervening settlement. In such case the law would infer a promise to account for all the items in such new account and to pay the balance of the same. But thic construction will not avail the plaintiff, because the account which was added to the balance of November, 1817, did not continue open and running until January, 1824, but was open and running only for a month at a time. Three or four statements and settlements were made by the parties between November, 1817, and the commencement of the six years next before this suit was brought.

The plaintiff cannot prevail unless we adopt the argument ol his counsel, which has been pressed with much force and ingenuity, that where accounts are settled by carrying the balances forward instead of paying the same in cash, they are to be considered as open and running accounts from the beginning, and so not within the statute of limitations. We do not think this inference is to be drawn from the case of Farrington v. Lee, cited for the plaintiff, but if it is, we should consider that this point was as erroneously decided as was another in the same case, namely, that the saving clause in the statute as to merchants’ accounts extends only to actions of account. It is now settled that the exception is to be applied to actions of assumpsit, as well as to actions of account. Mandeville v. Wilson, 5 Cranch, 18. Indeed contradictory and unsound opinions touching the exception in the statute are not only to be found in that case, but they abound in the books of the law. Lord Eldon, in Foster v. Hodgson, 19 Ves. 184, thinks that the opinions in regard to the question, whether the same law that applies to open accounts applies to merchants’ accounts, are not to be reconciled ; one opinion being, that accounts between merchants. are not within the statute at all, but stand just as they would if no statute of limitations had been made, while another, and it seems to us the better opinion, is, that they are barred by the statute, if more than six years have passed since the dealing ceased.1 Barber v. Barber, 18 Ves. 286 ; Webber v. Tivill, 2 Wms’s Saund. 127, and notes 6, 7.

But however that may be, the point now under consideration is, whether the accounts between these parties were open and current from November, 1817, so as to warrant the direction to the jury, that the law inferred a promise to pay within six years.

We have met with no case where accounts, which had been so settled, were held to be open from the beginning, because the balances were carried forward instead of being paid in cash. Nor is it reasonable that it should be so. Lord Hardwicke, in Welford v. Liddel, 2 Ves. sen. 400, considered that the exception in the statute relating to merchants’ accounts, ' ‘ was to prevent dividing the account between merchants, where it was a running account, when perhaps part might have oegun long before and the account never settled, and perhaps there might have been dealing and transactions within the time of the statute.” Now it would be just as contrary to the meaning of the statute, to open an account stated, as it would be to divide a running account. And can it be said that the parties in this case have not settled ? Are their accounts unliquidated, as if no statement of them had been made ? A stated account is an agreement by both parties that all the articles are true. Trueman v. Hurst, 1 T. R. 42. And upon an insimul computassent the plaintiff is not obliged to give evidence of the articles. It is sufficient if he prove the account stated. Bartlett v. Emery, 1 T. R. 42, in notis. “ An account between partners in trade, after the death of one of them, shall be taken only from the time the same was last balanced.” Beak v Beak, 1 Vin. Account, (D. a.) pl. 3.

A stated account was formerly held to be conclusive ; and it is now so considered, until leave is given to surcharge, falsify, or open it. That is obtained by a bill in chancery for that purpose. In a bill before Lord Thurlow to open an account which had been settled, he held that the expression of “ errors excepted,” did not prevent its being a settled account; and he considered the fact that the balance had been carried over, as showing that the account had been settled. Johnson v. Curtis, 3 Bro. C. C. 266.

The ackn iwledgment which is to be inferred from the mutual and open accounts within six years, should be limited to the items appearing in the same. If, for example, one of the items should be a sum of money, being the balance of a former account settled more than six years before the action, it would be protected from the operation of the statute by the items which are within six years.1 In such a case the law would infer a promise to settle for all the items of the new account. The promise and acknowledgment may be reasonably extended so far; but not to the various charges and disbursements in former times, from which the balance charged in the open account arose. What of doubt now appears, might in the time of the transaction have been explained by papers, vouchers, or witnesses ; but it would be doing great violence to go behind the account which is open and current, and behind a hundred or more stated accounts, to inquire if at some former period during the trade between the parties, perhaps some twenty or forty years ago, a mistake did not happen in one or more of the settlements, which, if corrected, would make the balance constituting one item in the open account to be either too little, or too great, or on the other side. We do not think the case of Farrington v. Lee will warrant such a construction ; and if it will, we cannot yield to its authority. Such a decision would lead to great perplexity, vexation, and uncertainty in commercial concerns, and would open a door to endless litigation.1

We are therefore of opinion that a new trial should be granted.

1 The doctrine, that entries made in I he usual course of business, by one who had no interest to falsify, should be received in evidence after his death, aceras to be regarded by Starkie, (1 Stark Ev. 5th Amer. ed. 998 to 302,) as the correct doctrine, on principle. He, however, considers it not clearly settled by the cases, whether, in addition to the absence of all interest to falsify, there should not also be an interest not to falsify, in the party making the entries. See also 1 Phil. Ev. (7th Lond. ed.) p. 260, 262, 263, and the cases cited in the notes; Barker v. Ray, 2 Russell’s Ch. R. 67, and the cases cited in the note. In Spiers v. Morris, 9 Bingh. 687, it was decided that entries of receipt of rent by a deceased executor, who received and accounted for it in that capacity, and under whom the plaintiff claimed, were evidence for the plaintiff. So in Lichfield v Stacy, 6 Carr. & Payne, 139, it was held, that entries signed by a deceased agent by which such agent was charged, were receivable in evidence, though the entries themselves were not in his handwriting. In both of these cases the court rely much on the fact, that the entries were made against the interest of the parties making them.

The American cases do not seem to demand this additional security. See Nicholas v. Webb, 8 Wheat. 326; Halliday v. Martinet, 20 Johns. R. 168; Holliday v. Littlepage, 2 Munf. 316; Welsh v. Barrett, 15 Mass. R. 380; Union Bank v. Knapp, supra ; The Farmers' and Mechanics' Bank v. Boraef, ) Rawle, 152; Brigs v. Low, 5 Gill & Johns. 134; State Bank v. Cain, 1 Breese, 45; Nichols v. Goldsmith, 7 Wendell, 160.

2 2 Stark. Ev. 734; Francis v. Ocean Ins. Co. 6 Cowen, 404; Bank of Utica v. Hillard, 5 Cowen, 419 ; Angell & Ames on Corporations, 408, 409

3 State v. Clark, 2 Tyler, 277; Long v. Bailie, 4 Serg. & Rawle, 226, Fernsler v. Carlin, 3 Serg. & Rawle, 130; Corman v. Foster, 1 Ashmead, 133; Smith v. Downs, 6 Connect. R. 365; Gilpin v. Vincent, 9 Johns. R. 219; Moore v. Hitchcock, 4 Wendell, 292.

But see Plumb v. Whiting, 4 Mass. R. 518; Richardson v. Hunt, 2 Munf. 148; Senteney v. Overton, 4 Bibb, 445 ; Lansingburg v. Willard, 8 Johns. R 428.

See also Peter v. Beall, 4 Harr. & M‘Hen. 342; Moore v. Sheridine, 2 Harr. & M‘Hen. 453; Henry v. Morgan, 2 Binn. 497; Skillinger v. Bolt, 1 Connect. R. 147

1 An instrument attested by a person who has become blind may be proved by evidence of his handwriting, without calling him. Pedler v. Paige, 1 Moody & Rob. 258. A book account may be proved by proving the handwriting of the clerk, who made the entries, if he be out of the State. Elms v. Chevis, 2 M‘Cord, 350. But see Kennedy v. Fairman, 1 Haywood, 458.

2 See Cogswell v. Dolliver, 2 Mass. R. (Rand’s ed.) 222, and the numerous cases cited in note (a); Smith v. Sanford, 12 Pick. 139; Holmes v. Marden, 12 Pick. 169. In this last case it was decided, that where a party’s own books, with his suppletory oath, are competent evidence to prove the charges therein contained, secondary evidence of the contents is admissible in case the books are lost or destroyed. But he, who voluntarily and without accident or mistake destroys primary evidence, thereby deprives himself of the use of secondary evidence. Broadwell v. Stiles, 3 Halst. 58. Evidence that the party swearing to his own account books is unworthy of belief on oath, is admissible. Kitchen v. Tyson, 2 Murphey, 314. In Linnell v. Sutherland, 11 Wendell, 568, it was held, that, in a suit by a mechanic for work done in his line of business, after proof of one or two items of his account, the production of his books of account, with proof that he kept honest and fair books, was competent evidence. In South Carolina the books of a schoolmaster were held not admissible, to prove his account for schooling. Pelzer v. Cranston, 2 M'Cord, 328.

3 Dunn v. Whitney, 1 Fairfield, 9. But a charge for 2088 pounds of wool may be recovered in an action on book account, if sold and delivered, and the object of the action is to recover the just value of the wool. Leach v. Shepard, 5 Vermont R. 363 But see Dunn v. Whitney, supra; Terill v. Beecher, 9 Connect. R. 344

1 This doctrine is expressly overruled in Bass v. Bass, 6 Pick. 362; Bass v. Bass, 8 Pick. 187 See post, 113, note 1; Revised Stat. c 120, § 5

1 So if there is no item in the account within six years. Bass v. Bass, 6 Pick. 362; Mandeville v. Wilson, 5 Cranch, 15; M'Lellan v. Crofton, 6 Greenl. 308; Davis v. Smith, 4 Greenl. 339; Stiles v. Donaldson, 2 Dallas, 264; Godfrey v. Sanders, 3 Wils. 94. But see Coster v. Murray, 5 Johns. Ch. R. 522; Murray v. Coster, 20 Johns. R. 582; Ramchander v. Hammond, 2 Johns. R. 200; Farrington v. Lee, 1 Mod. 269; Barber v. Barber, 18 Ves. 286; James v. Richmond, 5 Ohio R. 338; Rhyn v. Vincent, 1 M'Cord, 150; Spring v. Gray, 5 Mason, 528.

The law on this head is now settled in this State by statute; which enacts, that u in all actions of debt or assumpsit, brought to recover the balance, due upon a mutual and open account current, the cause of action shall be deemed to have accrued, at the time of the last item proved in such account.” Revised Stat. c. 120, § 5.

1 As to mutual accounts, see further Franklin v. Camp, 1 Coxe, (New Jers.) 196; Smith v. Ruecastle, 2 Halsted, 357; Bennett v. Davis, 3 N. Hamp R. 19; Stiles v. Donaldson, 2 Yeates, 105; Coleman v. Hutchinson, 3 Bibb 209 ; Chamberlain v. Cuyler, 9 Wendell, 126; M'Lellan v. Crofton, 6 Greenl 308; M'Naughton v. Morris, 1 Haywood, 216; Bond v. Jay, 7 Cranch, 350 Gold v. Whitcomb, 14 Pick 188.

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Turnbull v. Strohecker, 4 M'Cord, 311; Buntin v. Lugow, 1 Blackford, 373