1. In all cases under the "book debt" law, Rev. Stat., ch. 15, it is the duty of the party, who wishes to prove his debt by his own oath, to produce the original account, when notice to that effect has been given to him by the other party. A voluntary destruction of the original will not authorize the introduction of a copy.
2. Where the agreement was that the plaintiff was to receive from the defendant $50 for his work for twelve months, "$10 to be paid when the time is half out, and the balance when the year is out"; and "if can't agree, part and pay according to what he is worth, not to be considered worth as much the first as last," and, at the end of 9 2-3 months they parted, and the defendant contended that the plaintiff was to receive only $10 for the first six months and $40 for the last, the Court did not err in informing the jury that, if this were the true construction of the agreement, then the plaintiff was entitled to recover for the time served, after the first six months, a ratable proportion of the $40 for the last six months.
GASTON, J.
Section 3, chapter 15, Revised Statutes, is very positive in declaring that when one of the parties shall have given notice to the other, who seeks to establish a "book debt" in the manner therein authorized, requiring the book to be produced on the trial, no copy thereof "shall be received or admitted as evidence." There is no room to doubt that this provision applies to all the cases previously mentioned in the chapter as cases of "book debts." Now, if we admit, which is by no means certain, that the accidental destruction or loss of the book constitutes an exception from this precise enactment, it cannot be conceded that a voluntary destruction of the book, by him who offers a copy, comes within the reason of such an exception. If the slips of paper, on which the defendants kept their accounts, are to be regarded under the equity of the statute as their book, they were bound to produce the original on the trial. If they do not come within the purview of (446) the statute, neither the original nor a copy was evidence.
The agreement between the defendants and the plaintiff is expressed to be "for his work for twelve months at the shoe making business and other things when called on, for the price of $50, ten dollars to be paid when the time is half out and the balance when the year is out"; and to it is subjoined a memorandum in these words, "if can't agree, part and pay according to what he is worth not considered to be worth as much the first as last." The agreement is not to work for two successive periods of six months each, at the price of ten dollars for the first — and forty dollars for the second period, but an agreement to work one year for fifty dollars, with a stipulation to receive a partial payment at the end of six months. And the proper construction of the clause providing for a case of disagreement and separation before the year should be out, is, that the plaintiff should receive a fair price for his services, estimating their value at $50 for a year, and making reasonable deductions because of their being less valuable in the beginning than when he had become more expert in his business. But the defendants contended that under the agreement the plaintiff was to be paid $10 for the first six month's labor, and forty dollars for the second; and that the parties having separated before the last term had expired, he was entitled to receive in addition to the $10, but a ratable part of the $40, on account of the portion which he served of the last term — and that in estimating this ratable part each month's labor to be priced as being worth less than the next succeeding one of that term. Now we think, his Honor might very properly have rejected both the construction and the inferences drawn from it; but assuming the construction as he did hypothetically, we do not see that he then erred in his conclusion. If the agreement fixed the value of the services at $10 for the first six, and $40 for the last six months, the stipulation that in the event of parting he should be paid what he is worth, but "not to be considered to be worth (447) as much the first as last," would seem to refer to the two parts of the year, for which his labor had been severally priced as aforesaid. We see no error of which the defendants can complain.
PER CURIAM. No error.