Berry v. Admrs. of Berry

17 N.J.L. 440

• Court: Supreme Court of New Jersey
• Decided: February 15, 1840
• Status: Published

Opinion

Hornblower, C, J.

This was an actum of Assampsk, brought by tic defendants in Error, against the plaintiffs in Error, for goods sold and delivered &c» The defondant below, pleaded the genera! issue, and payment, with notice of set-off.

On the trial of the cause, the defendant called a witness, by whom he proved that he had paid, at the request of, and for the use oi the intestate in his lifetime, the sum of one hundred ¡uni fifteen ci- one hundred and nineteen dollars. (In a cross examination oi the witness, it came out, that the defendant, at the timo he paid the money, had taken a receipt for it$ whereupon the defendant’s counsel, moved to overrule the evidence, and the court did so. The defendant below, then called another witness, by whom he offered to prove that he was present and saw the money paid by the defendant for the intestate, and what was the nature of the writing or receipt taken by the defendant for the money - to tisis evidence, the plaintiffs objected,asid the court sustained tho objection and rejected the evidence. The defendant then offered to prove by another witness, that in the fall of 18S4, the plaintiffs’ intestate told him, that he had got his son Albert Berry, (the defendant below,) to pay upwards of one hundred dollars for him," and that he owed Albert that money: but it being admitted that this was the same money referred to ' by the other witnesses, and for which a receipt had been given, the admission of the evidence was objected toj and the court sustained the objection and rejected the evidence. To each of these decisions, exceptions were taken by the defendant below, and they are now assigned for error.

The genera! rule, that the best evidence the nature of the case admits of, must be produced, was well calculated to mislead the Court of Common Pleas, on this subject.- But a simple receipt for money does not fall within that rule. Such receipts, are not conclusive; they are open to examination, and may be variedy explained or contradicted by' parol, and need not therefore be produced; or their non-production accounted for, in order to legalize parol evidence of the payment of money. It was expressly decided so, by the Supreme Court of the State of New York, in Southwick v. Hayden, 7 Cowen's R. 334, and that decision is in principle, sustained by a variety of other cases. Elwell v. Leslie, 2 Halst. 349; Snyder v. Findley, Coxe R. 48; Middleditch v. Sharland, 5 Ves. 87; Stratton v. Rastall et al., 2 T. R. 366; Rambert v. Cohen, 4 Esp. N. P. 213; Tobey v. Barber, 5 Johns'. R. 72; House v. Low, 2 Johns'. R. 378; Putnam v. Lewis, 8 Johns'. R. 389; Ensign v. Webster et al. 1 Johns'. Cas. 145.

That cannot be called the best evidence, which is itself liable to be overcome, explained or destroyed by mere parol evidence. A party however, who has a receipt, and withholds it; or having bad one, omits to account for its non-production, may subject himself to suspicions that may justly operate to his prejudice on the trial, but cannot be precluded from giving parol testimony of the payment of the money, for which the receipt was given. The judgment must therefore be reversed, and a venire de nove issue.

All the justices concurred.

Judgment reversed, and venire de novo awarded