Cannon v. Kinney

3 Del. 317

• Court: Superior Court of Delaware
• Decided: July 1, 1841
• Status: Published

Opinion

Booth, Chief Justice,

charged the jury: — 1. That where the books are not relied on as evidence in themselves of the sale, a witness competent to prove the sale and delivery must swear to his own knowledge of the fact; and not merely because he finds the entry of ¡such sale on the books. He may look at the books to refresh his memory, but for nothing else; and unless, after looking on the books, he can swear to the sale and delivery of each article from his own recollection, now refreshed by the books, the evidence is not sufficient proof. A mere copy of the account taken from the book is not evidence, though sworn to; the book itself must be produced and accompanied by the oath of the party; if this be not done, nothing short fcf proof of actual sale and delivery of the goods, made by a person Ivho had personal knowledge of such sale and delivery, will enable the plaintiff to recover. 2.' Suppose the sale and delivery of the 1-oods to Kinney sufficiently proved; the next question is, have they »een paid for? Several receipts have been given in evidence, in re-lerence to one of which it is alledged by the plaintiff that there is a Inistake, and that it was given by mistake, for more money than was In fact paid. As to this matter, the law is that a receipt is stropg ■rima facie evidence of the payment to the amount it specifies on its ■ace; but it is not conclusive; it may be contradicted; and may be Bhown to have been given by mistake.

I The jury must judge from all the evidence, whether it is sufficient ft> satisfy them of the mistake in the receipt, in which case they may Horrect it according to the truth; otherwise they must take it to be ■me.

Verdict for defendant.