THOMAS KERNS, RESPONDENT, v. E. I. McKEAN, APPELLANT.

EVIDENCE-BOOKS OF ACCOUNT-CONTRACT FOR SALE OF LAND-NONPAYMENT OF PURCHASE PRICE.—In an action by a vendor to a contract for the sale of land to recover the possession thereof, on the ground that the vendee had not performed the conditions of the contract with respect to the payment of the purchase price, the books of account of the vendor, showing part payment of the purchase price on certain days, are not admissible to establish that no further payments had been made, when there is no evidence that the book was one of original entries, and when the person who kept the same, being present at the trial, does not testify that the entries were made at the date of the transactions they purport to record, or that the entries were correct of his knowledge when he made them.

APPEAL from a judgment of the Superior Court of Santa Cruz County, and from an order refusing a new trial.

The facts are stated in the opinion of the court.

J. A. Barham, and Garber & Bishop, for Appellant. The account-books were inadmissible as evidence of transactions under a special contract. (Lyman v. Bechtel, 55 Iowa, 437; Lanergan v. Whitehead, 10 Watts, 249; Nickle v. Baldwin, 4 Watts & S. 290; Pritchard v. McOwen, 1 Nott & McC. 130; Veiths v. Hagge, 8 Iowa, 184; Morse v. Potter, 4 Gray, 292; 1 Greenl. Ev., secs. 117, 118; Severance v. Lombardo, 17 Cal. 58; Watrous v. Cunningham, 71 Cal. 32; Roche v. Ware, 71 Cal. 375; Lawhorn v. Carter, 11 Bush, 7.)

Charles B. Younger, for Respondent.

The admission of the account-book was not error.

(Sil

v. Reese, 47 Cal. 294; Carroll v. Storck, 57 Cal. 366; Roes v. Bruise, 70 Cal. 465.)

MCKINSTRY, J.-This is an action for the recovery of the possession of a certain tract of land.

One Patterson, being the owner of the premises herein demanded, entered into a written contract with one Sanford, since deceased, for the sale to the latter of the land for the consideration of $3,336, with interest,-$500 by exchange of lands at the making of the agreement, and the balance to be paid in four equal annual installments. Sanford, the purchaser, was also to pay all taxes. And it was further agreed that if any default should be made in any payment of principal, or interest, or taxes, the whole principal and interest should become due at the election of Patterson, who, upon such default, was authorized to declare the agreement and rights of Sanford thereunder forfeited and ended by depositing a written notice of such forfeiture in the office of the county recorder, etc.

At the trial of the present action the plaintiff, grantee of Patterson, as evidence that Sanford had not complied with his agreement by paying the full sum of $3,336 and interest, introduced "the account-book of Patterson of the Corralitos rancho, wherein the accounts of Sanford and others with Patterson were kept by Patterson, and all the entries therein were made by and in the handwriting of one Hanna, who was Patterson's bookkeeper at the time." The objections of the defendant were overruled, and the plaintiff put in evidence the following entries from the book:LA MOTTE.

The non-payment of moneys to be paid by Sanford upon the contract of purchase was a fact of a nature to be proved by the usual evidence of it. The performance or non-performance of such a specific agreement is not a fact within

the reason of the rule, supposed to arise out of necessity, which permits at least when the party is not competent as a witness-matter to be proved by books of account. (Nickle v. Baldwin, 4 Watts & S. 290; Lyman v. Bechtel, 55 Iowa, 437.) Books of account were admissible when the nature of the subject was such as not to render better evidence attainable. (1 Greenl. Ev., sec. 117.) A book kept in tabular form, by the defendant, of the days on which plaintiff worked, was held not admissible in evidence to show that the plaintiff did not work on certain days. (Morse v. Potter, 4 Gray, 292.) U or peculiar circumstances an entry in the books of a third person may be admissible as part of the res gesta, when the third person is dead, possibly sometimes when he is still living. But the evidence here offered was inadmissible under any rule.

Patterson had a clerk. The entries were made by Hanna, Patterson's book-keeper. And although, as shown by the statement on motion for new trial, Hanna was examined as a witness, it does not appear that he was questioned with respect to the entries; that he testified that they were made. at the date of the transactions they purport to record, or that the entries he made were correct of his knowledge when he made them. Nor was it shown that the book was a book of original entries.

The offer of the book was an attempt to establish a negative, favorable to the cause of the plaintiff, by affirmative declarations of a third person, when it appeared such third person was within the jurisdiction and actually present at the trial. It was an attempt to establish that some money was not paid by what was claimed to be evidence that other money was paid. But the evidence offered to prove the fact, from which the inference of the other fact was to be drawn,whether the mere offer would or would not estop the plaintiff,-was not such as was admissible against the defend

ant. For the error indicated, a new trial should have been granted below.

Judgment and order reversed, and cause remanded for a new trial.

SEARLS, C. J., and PATERSON, J., concurred.

Hearing in Bank denied.

[No. 11299. Department One.—May 5, 1888.] WILLIAM WHEELER, RESPONDENT, v. CHARLES KASSABAUM, APPELLANT.

NEW TRIAL-ORDER GRANTING-SETTING ASIDE JUDGMENT.-An order granting a new trial operates to set aside the judgment.

ID.-APPEAL FROM ORDER DENYING NEW TRIAL-SUFFICIENCY OF COMPLAINT.--The sufficiency of the complaint cannot be considered on an appeal from an order denying a new trial.

APPEAL from a judgment of the Superior Court of Mariposa County, and from an order refusing a new trial.

The complaint alleged, in substance, that the plaintiff was engaged in the business of raising cattle for sale in the counties of Tuolumne, Merced, and Mariposa, and was the owner of and uses a brand "D. H.," in branding animals "required to be branded by" section 3167 of the Political Code, and that he caused the brand to be recorded in the office of the respective recorders of the three counties named; that he transferred his cattle to defendant as security, and delivered with them his branding-iron; that a receiver was appointed, and all defendant's claims having been satisfied, the cattle were turned over to the receiver and then to plaintiff; that defendant did not deliver to the receiver the branding-iron, nor did he after demand ever deliver "the said branding-iron" to plaintiff; that defendant has since claimed to own both the brand and brand

ing-iron, and is using it in branding "mules and other animals requiring a brand" under section 3167 of the Political . Code, claiming the right to use it; that "plaintiff has long been and still is the owner of large numbers of cattle branded with said brand 'D. H.' which are running at large on the range with other cattle," and liable to become mingled with the defendant's cattle, and that it will be difficult to determine the ownership of said cattle; that defendant claims and "intends to claim many of the cattle of plaintiff” branded “D. H.," and "to put plaintiff to expense to establish his right to said brand," and is injured by defendant "so retaining possession of and so using the branding-iron, so delivered to him, in damages not less than five hundred dollars"; and that pecuniary compensation would not afford adequate relief. The prayer was, that the plaintiff be decreed to be the owner of the said brand, and the prima facie owner of all cattle found branded therewith; that the defendant be compelled to surrender the branding-iron to the plaintiff, and for damages in the sum of five hundred dollars. Judgment was rendered accordingly in favor of the plaintiff, from which, and from an order refusing a new trial, the defendant appealed. The further facts are stated in the opinion of the court.

L. F. Jones, L. N. Jones, and Fox & Kellogg, for Appellant.

G. G. Goucher, and J. W. Congdon, for Respondent.

MCKINSTRY, J.-There is no evidence in the transcript to sustain the finding of five hundred dollars damages. The order denying a new trial must therefore be reversed.

There are other portions of the judgment which are not justified by the evidence or findings, but as a judg