Opinion
February, 1897.
Charles F. Smith, for appellant.
Leopold W. Harburger, for respondent.
The proof was sufficient to authorize the justice to find that the defendant opened the account with the plaintiff for groceries to be supplied to defendant's family, which then consisted of his mother and sisters with whom he lived in this city, and that a pass-book was furnished by plaintiff to defendant in which were to be entered the goods ordered by the members of the family. This book was made out in the name of the defendant's mother, but that was not conclusive against the claim that the credit was given to the defendant and that the goods were supplied to him upon his request.
The evidence also authorized the finding that after the defendant's mother and sisters removed to Staten Island, they continued to get goods from the plaintiff upon the original pass-book and another issued in continuance of the dealings with plaintiff; and that the latter had no notice from defendant to discontinue the supplies. There was a conflict of evidence upon the point, but the probability that the plaintiff would not continue to so deliver goods if forbidden by defendant, makes the preponderance in plaintiff's favor.
It is claimed that the proof of deliveries and of the balance remaining due after payments, is not sufficient to sustain a judgment for $78.15, as rendered by the justice. Upon that point the evidence stands in this way: After the account was opened, different persons came with the pass-book, and the charges for goods supplied were entered therein in the usual course of business. This continued without variation from the beginning to the end of the dealings which are the subject of this suit. Payments were credited in the book from time to time, and such payments were made by the defendant on two or more occasions. He retained the book and left it with his mother and sisters and it was produced upon this trial by him with entries, subsequent to his last payments, showing a balance which was transferred to the new book in which the dealings were continued down to the time of the last orders. The correctness of the plaintiff's entries in the pass-book was thus proved, and the books were admissible in evidence. They were continuously in the possession of the defendant or of the persons to whom he intrusted them and, presumably, any incorrect entries would have been promptly challenged had any of them been prejudicial to the defendant. This is not a case where a tradesman seeks to recover upon the correctness of his own books, for the pass-books are, more properly speaking, the books of his customer or, to say the least, are the joint books of both parties.
These considerations dispose of the questions in the case. The exceptions do not show error.
Judgment affirmed, with costs.
MCADAM and BISCHOFF, JJ., concur.
Judgment affirmed, with costs.