Römer v. Jaecksch

Bartol, C. J., delivered the opinion of the Court. This suit was instituted by the appellee for goods bargained and sold to the appellant, and upon an account stated. The account filed with the narr. charges the appellant in account with II. Campen & Co. with several lots of merchandise, principally flour, at different dates from October 3rd, 1871, to July 22nd, 1872, amounting in all to $916.25.

The same account contains several credits for cash on different days from February 5th, till July 10th, 1872, leaving a balance due Campen & Co. at the date of the last charge of $250.25. To prove the sale and delivery of the goods charged, the appellee was called as a witness, and produced a book, called the “order book” of the firm, which contained ⁵⁸⁸ entries made by Campen, his deceased partner, charging the appellant with the merchandise sued for in this case. He testified that “whenever the said Campen sold flour for the firm, he Campen was in the habit of entering the same upon an order book kept by the firm, and that the firm always engaged to deliver the flour that it sold, and also that he knew it to be the custom of Campen to make such entries in the course of business, at the time the flour left the store of the firm, in its wagons, on the way to the place of delivery.” (The order book contained entries of sales corresponding with those set forth in the account filed with the declaration, and also entries of payments for all such sales, except the first, second and last, being those of October 3rd, and November 8th, 1871, and July 22nd, 1872.) which the witness testified were in the hand-writing of Campen. To the admissibility of these entries, the appellant objected; but the Superior Court overruled the objection, and allowed the same to be read to the jury as evidence, “for the purpose of establishing the sale and delivery of flour, as charged in the first, second and last items in the account.” The appellant excepted, and the correctness of this ruling is the only question presented by the present appeal.

It has been contended on the part of the appellee that the entries are admissible evidence, because they were made in the ordinary course of business and contemporaneously with the transaction; and for this is cited 1 Greenleaf on Evidence, secs. 120 & 149; Price vs. Torrington, 1 Smith’s L. Cases, (4th Am. Ed.,) 139m and notes, and Doe vs. Durford, 3 B. & Ad., 898. But those authorities refer to entries made by a clerk, agent, or attorney, or other disinterested person; when so made, they have been held in Maryland as admissible evidence. ■ In 15 Md., 523 , it was said: The rule is well settled “that entries made by a clerk in the regular course oí ⁵⁸⁹ business, he having no interest at the time in stating an untruth, are admissible in evidence after the clerk’s death, Reynolds vs. Manning, et al., 15 Md., 510, 523 ; Clarke vs. Magruder, 2 H. & J., 77 ; King vs. Maddux, 7 H. & J., 467 . The admission of such evidence is one of the recognized exceptions to the general rule excluding hearsay testimony.

In Taylor on Evidence, vol. 1, sec. 640, the learned author thus states the result of the decisions in England on this subject: “From the cases cited above, it may be collected, that in order to bring a declaration within the present exception, proof must be given that it was made contemporaneously with the fact which it narrates, and in the usual routine of business, by a person whose duty it was to make the whole of it, who was himself personally acquainted with the fact, who had no interest in stating an untruth, and who is since dead.” In 1 Greenleaf on Evidence, sec. 118, it is said : “In the United States this principle has been carried farther, and extended to entries made by the party himself in his shop-books,” and for this a number of decisions are cited in the note; but this extension of the doctrine has not been sanctioned in Maryland. In this State the rule of the common law has not been departed from, and it has been held to apply only to entries made by a clerk, or other disinterested party ; here the entries in question, are those made by the deceased partner, a party to the transaction, having a