MELVIN v. WOOD

MELVIN against WOOD. Court of Appeals; June Term, 1867. Bill of Particulars.—Amendment. A bill of particulars annexed to the complaint forms part of it, and is amendable- accordingly. A referee has power, on the trial of the issues, to allow a new bill of particulars to be substituted for that annexed to the complaint. Appeal from a judgment. This action was brought by Austin Melvin and others, plaintiffs and respondents, against James Wood, defendant and appellant. The plaintiffs claim to recover in this action a balance of account • due them from the defendants, copartners, transacting business- under the name of Samuel Barker. 'The referee before whom the action was tried found the following facts: 1. At the times in said report mentioned, the plaintiffs were, and still are, copartners in business in the city of New York, under the firm name of Melvin & Dan-forth. 2. On the 1st.day of April, 1859, the defendants became copartners in the business of tanning hides and skins in the Highland Tannery, Newburg, Orange county, under the firm name of Samuel Barker; and such co-partnership continued from said 1st day of April, 1859, until after the 5th day of November in the same year. 3. That between the 9th day of April and the 5th day of November, 1859, both inclusive, the plaintiffs, at the request of the defendant, sold and delivered to them, on divers days, hides and leather, and lent and advanced to them cash, amounting altogether, to the sum of $9,134.80, as now particularly appeared in a schedule annexed to his report, marked A. 4. That during the times aforesaid, and on divers days after the dissolution of defendants’ said firm, prior to July 10,1860, the plaintiffs received from defendants, for sale on commission, for account of said defendants, divers quantities of leather, and sold the same for defendants’ account, and credited the defendants with the net proceeds thereof; and that during the same period they made certain allowances as credits to said defendants, on account of damages on hides sold them, and of a small balance due from the said plaintiffs to defendant Barker, at the date of the formation of said firm of Samuel Barker. 5. That the net proceeds of such sales, including said allowance, after deducting’ all commissions, charges, disbursements, and allowances, amounted to the sum of $7,521.99, and the items of said credit were stated in detail in said Schedule A. 6. That by agreement between plaintiffs and defendants, the defendants were to be charged with interest on sales from the time when the same became due, and on all moneys advanced, from the date of such advance, and were to be credited with interest on all proceeds of sales for their account from date of realizing said proceeds ; and on the 10th of July, 1860, the balance of interest on said accounts of debits and credits was in favor of plaintiffs, and amounted to $184.32, and there was then due from defendants to plaintiffs, on said account, a balance of principal and interest amounting to the sum. of $1,797.13. 7. That on said 10th of July, 1860, payment of said balance was demanded of said defendant Wood, 8. That no part of said balance had been paid by said defendants to said plaintiffs; but that the whole amount thereof was due from said defendants to said plaintiffs, with interest thereon from said 10th day of July, 1860. The referee accordingly reported, as a conclusion of law, that the plaintiffs were entitled to recover that sum, and judgment was thereupon entered in favor of the plaintiffs therefor, and on appeal the same was affirmed by the general term. The defendant Wood now appealed to this court. A. J. Parker, for the defendant, appellant. I. H. Reynolds, for the defendants, respondents. [MAJORITY — By the Court.—Davies, Ch. J.] By the Court.—Davies, Ch. J. Upon the facts found by the learned referee, the judgment in favor of the plaintiff for the amount thereof was clearly correct, and must stand, if no errors were committed upon the trial. This I understand to be conceded by the learned counsel for the appellant, and he therefore proceeds in his brief to point out the several erroneous rulings which, in his opinion, he thinks the referee made upon the trial. [After disposing of an unimportant question of evidence, the learned judge proceeded as follows :] 3. It is objected that the referee erred in allowing the plaintiffs to amend their bill of particulars. To the complaint was annexed, and served therewith, an account of the defendants with the plaintiffs, appropriately designated as a bill of particulars. It formed a part of the pleadings in the action. Upon the trial, the counsel for the defendant Wood moved for leave to amend his answer, so as to conform the second and third heads of the defense, and particularly the counter-claims, to the testimony already given, and particularly to the testimony of Samuel Barker. ' The referee decided to allow the amendments to the answer of the defendant Wood, as proposed by his counsel, and thereupon the same was amended accordingly. The plaintiffs’ counsel then moved for leave to amend the complaint by substituting, in the place of the original bill of particulars, a new bill of items filed with the referee, to which the counsel for the defendant Wood objected ; and the referee overruled the objection, and allowed the amendment to the complaint; and to this decision the counsel for the defendant Wood then and there excepted. Sections 169 and 173 of the Code fully authorized the referee to amend the pleadings of the respective parties in this action, and we do not regard his rulings in this respect open to review in this court. It was a matter resting in the discretion of the referee, and we think it was properly exercised in the present instance. We think it hardly lies with the defendant to object that the same favor was allowed to the plaintiff which he asked for and was accorded to himself, particularly as the very amendments to his pleadings, which he made by leave of the referee, probably necessitated and called for amendments on the part of plaintiffs. The privilege which was conceded to one party was properly granted to the other, ond we see no error in the referee’s rulings on this branch of the case. It is urged that the referee improperly excluded evidence of the contents of the books of the defendants. We are not favored with an authority or a principle whereby it is established or shown that the books of a party can be adduced as evidence on his own behalf, and made testestimony against Ms adversary. Such books are but the acts and declarations of the party making them, and upon no rule of evidence can they be competent testimony on behalf of the party keeping and making them. The referee properly excluded them. [The remainder of the opinion relates to unimportant questions of the admissibility of testimony.] Judgment affirmed.