NATHAN ROGERS, Sr., Appellant, v. JAMES L. GRAVES, Respondent

NATHAN ROGERS, Sr., Appellant, v. JAMES L. GRAVES, Respondent. No. 1011; February 18, 1856. The Buie of in Bari Delicto is not to tie Invoked in a Case arising out of carelessness or indifference on the part of persons dealing with each other as it would he in a case arising out of their common fraud. Evidence. — The Books of Account of One Barty to an action are not evidence when the entries do not specifically connect the other party with the transactions they refer to. APPEAL from the Superior Court, San Francisco County. Rogers and others, doing business in San Francisco as ‘ ‘ The Hide Company,” sued for a balance of account, to wit, $983.62, for money advanced to the defendant from time to time at .his special request between October 6, 1853, and March 20, 1855. The answer denied generally and also set up a counter-indebtedness, a balance of $603.50, for hides sold to the plaintiffs at times varying between October 6, 1853, and May 1, 1855. The evidence disclosed very loose ways of business indulged in by both parties in dealing with each other. The defendant had a slaughter-house and kept outside the door a box into which his butchers would throw the hides as they were removed from the animals they slaughtered, and the hides would be lifted from the box by the plaintiffs’ teamster, on his daily rounds, and taken to the Hide Company's establishment, neither party counting them. The defendant kept account of such cattle as he slaughtered in this way, viz.: every day the number was given by the butchers to the collector, the collector made a memorandum accordingly and from this called them off to the defendant each night, if he happened to be at home, and the defendant then made appropriate entries in his book in his own hand. If it happened over that hides were sold to persons other than the Hide Company credit was given for them to the Hide Company in this book. The plaintiff also had a book, one in which the teamster would jot down the number of hides daily as he brought them in, but he took hides from many slaughter-pens besides that of the defendant. A jury was dispensed with at the trial and the defendant’s book was admitted in evidence. In deciding the case the court took the view that, although there was no reason to impute fraud to either party, after a transaction carried on in such a slovenly way it was warranted in applying the rule of in pari delicto and leaving the parties as it found them. Blanding, Calhoun & Wise for appellant; G. B. Tingley for respondent. [MAJORITY — HEYDENFELDT, J.] HEYDENFELDT, J. — The defendant’s books were inadmissible as evidence, for two reasons: 1st. No account was kept in them of any dealings with the plaintiffs. 2d. If they established the fact of the number of cattle killed, it was admitted that the hides from those cattle were sold to others, as well as the plaintiffs, and therefore no certainty could be attained, as to the quantity which the plaintiff received. Judgment reversed and cause remanded. I concur: Murray, C. J.