H. L. Stone & Co. v. James G. Taylor, 27 Tex. 555

Moore, J. In such suits as the present, from the necessity of the case, the' utmost liberality consistent with the rules of law and the nature of the proceeding, will be indulged in favor of the admissibility of evidence. In the adjustment of accounts between parties, in cases like this, it is obvious that many items cannot, ordinarily, be established with entire certainty by the evidence of disinterested witnesses. If there were no exception to the general rule of the common law, in this particular, there would often be a failure of testimony.

From the insignificance of many of the transactions, they would have passed from the memory of those who alone could be called upon to establish them; and, if this were not the case, owing to the distant localities to which resort must be had to procure the evidence, the expense of establishing them would greatly exceed the amount of such items. We are of the opinion that such cases as the present, from the very nature of things, are not within the general rule prescribed by the common law for testing the admissibility of testimony.

The exceptions to the rule, whether the proceeding is in a court of law, equity or admiralty, are as well established as the rule itself. The courts require, in such cases, the best evidence of which the matter in hand, in view of the ordiriary transactions in life, may be susceptible. The appellee, however, did not, in our opinion, bring himself within the liberal exception to the general rule.

He did not offer to introduce the ship books, in. which we must suppose the original entry of his account was made; or, if there were no such books in which 'the different items of his account were preserved, there must have been in his possession some original memorandum of them, made as the different items of the account accrued, which should have been presented for the inspection of the opposite party, and for the consideration of the jury, that they might be better able to determine as to the genuineness of the different items of the account.

Nor did the appellee even attempt to show that the account offered in evidence was a copy of the original entries made as the several items accrued. It cannot be said as an excuse for his failure to do so that no cotemporaneous charges of the items of the account had been preserved. No rule, however liberal, will permit a party to rely upon his memory, to preserve the different specifications of such accounts as that claimed by appellee in this case.

There was a failure to show, to the extent which it might easily and reasonably have been done, that the items of the account were such as are usual and customary in the business in which the appellee was engaged. And while witnesses were examined to show that he was prudent and careful in the management of the vessel under his command, and incurred no unnecessary expense, yet the account upon which he relies was not presented for the inspection of a single witness, and there was no-attempt to prove the various items of the .account, which we must suppose might readily and easily have been done.

In view of all these circumstances, we are of the opinion that the account offered in evidence by the appellee, although supported by his suppletory oath, should not have been received. The judgment is reversed and the cause remanded. Reversed and remanded.