Hirschfelder v. Levy & Co.

69 Ala. 351

• Court: Supreme Court of Alabama
• Decided: December 15, 1881
• Status: Published

Opinion

SOMEBVILLE, J.

Ve can see no error in tlie action of the Circuit Court, allowing the account to go to the jury to he. considered by them in connection with the other evidence in the case.

Its verification by affidavit, in compliance with the act of the General Assembly, approved January 16th, 1879, regulating the ■practice in actions on accounts, would have authorized its admission, but for the counter affidavit by the defendant, denying its correctness. This sworn contradiction, however, only destroyed its admissibility by virtue of the provisions of the statute, as prima facie proof of the same force as if made by deposition. — Acts 1878-79, pp. 154-5.

The evidence shows that monthly statements of the account had been sent to the defendant, and that no objection had been made by him, putting in issue its correctness, until the' commencement of this suit. It is a familiar rule of law that where an account is thus presented by a creditor to a debtor and the latter makes no objection after having a reasonable opportunity to examine it; or when he retains it an unreasonable length of time without objection, his silence will ordinarily be treated as an implied admission of the justness of the debt, the inference of its correctness being more or less strong according to the circumstances of the particular case. — 2 Whart. Ev. 1140; Langdon v. Roane, 6 Ala. 518.

These facts, therefore, authorized the jury to infer, in the absence of all explanation by the defendant, that he had by his silence acquiesced in the correctness of the demand, so as to render it a stated account.

The testimony of the witness, Iloverman, as we understand it, was not admitted for the purpose of establishing the correctness of the original book’ entries, of which the account is shown to be a copy. He shows himself ignorant of 'these entirely.. Nor did he pretend to refresh his memory by reference to the-items of the account so as to enable him to swear to his knowledge of the contents of such memorandum. To this end he= would not have been a competent witness. — Acklen v. Hickman, 63 Ala. 494; R. R. Co. v. Maples, Ib. 601; 1 Greenl. Ev. §§ 436-7.

He proves, however, that the account, which was allowed to go to the jury,-was a correct statement from the books kept by the plaintiffs, and to this extent identical in contents with the; account proved by him to have been rendered to the defendant. It was a memorandum of the facts contained in the which was sent to the defendant, and in the correctness of which he may have acquiesced by his silence. Such memoranda of admitted facts are frequently allowed to be put in evidence for the sake of convenience. They are not, technically speaking, evidence, but are convenient, if not frequently necessary, to aid the memory of jurors as to the testimony of witnesses. Eor this purpose the account was admissible, and proper to be considered in connection with the other evidence in the case.

Nor was any notice required to be given the defendant to produce the statement sent him, before receiving oral testimony as to the accuracy of the statement or memorandum allowed to go to the jury. Such memoranda are not regarded as instruments of evidence such as are required ordinarily to be produced. 1 Whart. Ev. § 152; National Bank v. Priest, 50 Ill. 321.

There is no error in the rulings of the Circuit Court, and its judgment is affirmed.