McDaniel v. Webster

7 Del. 305

• Court: Superior Court of Delaware
• Decided: July 5, 1860
• Status: Published

Opinion

The Court,

Gilpin, Ch. J.,

charged the jury : It had been conceded on the part of the defendant that the plaintiff was entitled to recover in the action to the extent of the value proved of the work performed and of the materials furnished by him in building the mill up to the time of his abandoning it; but the counsel differ as to the method in which this value is to be proved and established by the plaintiff. Our statutes provide [Rev. Code 184, 382,) that a book of original entries, regularly and fairly kept, shall, with the oath or affirmation of the plaintiff, be admitted in evidence to charge the defendant with the sums therein contained for goods sold and delivered, and other matters properly chargeable in an account. Cash items are expressly pronounced in the statute not to be such; but charges or items, such as have been proved and are referred to in this case, have always been held to be so. The object of the statute, however, as we understand it, is simply to make such books of original entries with the charges contained in them regularly and fairly kept, with the oath or affirmation of the party, admissible, or competent evidence merely in the case, but leaving the weight, credibility and effect to which they may be entitled in any case when admitted, entirely with the jury; and therefore it has always been held competent for the other side to disprove the character of the book of entries, or the items, or sums contained in them if he can, after they are admitted in evidence. As to the point made by the counsel for the defendant in regard to the special agreement alleged to have been originally made between the parties for the mill-wright work upon the mill, and under which the work upon it was done, so far as it was done by the plaintiff, whether there was such a special agreement, or any other special agreement in the case, it was purely a question of fact for the jury to determine from the evidence before them, and on which it was neither the duty, nor the privilege of the court to express any opinion. If the work was done under a special agreement such as had been stated, the plaintiff’s book of original entries with the charges and sums contained in his account, was not proper, or sufficient evidence to prove the value of his services, or work done and material furnished by him in building the mill; for in that case, the plaintiff would be confined to his special contract, and could only charge and recover in strict accordance with the terms of it. But if the work was not performed and the materials were not supplied, under any special agreement, or if there was originally a special agreement between the parties in regard to the matter, under which it was commenced and prosecuted as far as it was performed by the plaintiff, but which special contract was afterward rescinded, or abandoned by reason of the misconduct of the defendant in unreasonably interfering with, or interrupting the regular prosecution of the work, the plaintiff would then, in either case, be entitled to recover on the common counts for his work and the materials furnished, as far as he had proceeded with it, withont any reference to the special agreement, the same as if none had ever been entered into by him; and in either of those events, we consider, and rule, that his book of original entries would be admissible and competent evidence to go to the jury under our statute, to prove the work done and materials furnished, and the value of them; but it would not necessarily be conclusive, or unimpeachable evidence for either purpose in our opinion. For the jury-must take into their consideration all the facts and circumstances'proved in the case, and determine from all the evidence before them, both the amount of work done and the materials furnished and the value of each and make up their verdict in accordance with it.