
    Young v. Jones.
    Where a party seeks to recover for work and labor performed under a special contract, which he sets out in his petition, the defendant may show that the work was performed under a special contract differing from that declared upon by the plaintiff.
    Where a plaintiff claimed of the defendant ¡¡>164 50, and averred that at the special instance and request of defendant, he worked for him ninety-four days, and defendant promised to pay him therefor, $1 15 per day —all of which was denied by the answer; and where, on the trial, the defendant offered to prove that the work done by plaintiff was done under a special contract, by which he was to pay the plaintiff $15 00— which testimony was rejected by the court; Held, That the evidence was admissible.
    The loan or payment of money is not ordinarily the subject of charge n book accounts; and such a charge not being such as is made in the ordinary course of business, cannot be proved by the account book.
    To render books of account competent to prove the payment of money, the party offering must show that he is engaged in a business to justify such charges, as that of the business of banking; or of receiving money on deposit, and paying it out for others.
    If allowed at all, the privilege must be strictly guarded, and only allowed where the jury may be of opinion that the party is without any other proof, and that there has been such a course of continuous dealing between the parties, as that small sums passing between them in the ordinary course of business, became the legitimate subject of charge in book account.
    The statute of Iowa, providing for the admission of books oí account in evidence, has made no such distinction, as that small sums of money, may be proved by a party’s books of account, but that large sums shall not be so proved.
    
      Appeal from the DesMoines District Court.
    
    Saturday, April 9.
    The plaintiff sued the defendant, claiming the sum of $164 50, and averring that at the special instance and request of defendant, he worked for him ninety-four days, and defendant promised to pay him therefor $1 75 per day, which he now refuses, &c. The defendant answered, denying that plaintiff worked ninety-four days, as alleged; denying that he owed the plaintiff $164 50, as alleged, or any part thereof; and denying that he undertook and promised to pay plaintiff $1 75 per day for his work. There was also a plea of payment and of set-off.
    On the trial, the defendant offered to prove that the work by plaintiff was done under a special contract, for which defendant was to pay the plaintiff $75 00. The testimony was objected to by the plaintiff’; the objection was sustain-eel by the court, and the evidence excluded. The defendant proposed to prove his set-off by his books of account, and in the language of the bill of exceptions, “in the regular manner, as provided by law, qualified the same, and that each and all the items in defendant’s set-off, were charged in defendant’s book of accounts.” Thereupon the book was permitted to go to the jury as evidence. The'set-off contained items of money paid to plaintiff, amounting to thirty-five dollars — one item of twenty dollars, and three each of five dollars. The court charged the jury, that “the items of the set-off for money paid, could not be proved by the book of accounts; and that the book was not, of itself, evidence of the fact of money paid to plaintiff, as charged therein, and contained in defendant’s set-off. To this ruling of the court, the defendant excepted.
    
      Browning ds Tracy, for the appellant.
    
      C. Ben Darwin for the appellee.
   Stockton, J.

We think the evidence first offered by the defendant, should have been received. The plaintiff does not sue to recover, as upon a quantum valebat, or quantum meruit, for as much as' his work was worth, or as much as he therefor reasonably deserved to have; but he sues as upon a special contract, by which he avers, the defendant promised to pay him one dollar and seventy-five cents per day, for ninety-four days’ work. Without considering, at present, whether the plaintiff was bound to prove the contract as laid, and whether a misstatement of the quality or nature of the defendant’s promise, and his consequent liability theron, would be a fatal error, subjecting the plaintiff to a non-suit, it is. evident that the defendant may be allowed to show, in any manner, that the contract laid in the petition was not the agreement of the parties; and what mode so effectual for this purpose, as to prove an entirely different contract and promise of defendant? If the defendant could have proved that the agreement of the parties was, that for the work done by the plaintiff, he was to be paid seventy-live dollars only, the evidence would at least have gone to defeat his claim pro tanto / and it might become a question whether he could recover at all in this action, without amending his petition.

Books of account are competent evidence, when the charges they contain are made in the ordinary course of business. This fact is to be determined by the jury, from the charges themselves, and from the rules of law applicable to the business transactions of men. One of these rules is, that the loan, or payment of money, is not ordinarily the subject of a charge in book account; and that the charge not being such as is made in the ordinary course of business, by one party against another, cannot be proved by the account boob. To render the book competent to prove the payment of money, the party offering it must show that he is engaged in a business to justify such charges ; as, to illustrate, in the business .of banking, or of receiving money on deposit, and paying it out for others. If the payment or loan of money constituted, in any just sense, the ordinary business of defendant, and these charges of money paid, were made in the ordinary course of business, he may justly claim the right to prove them by. his books, but not otherwise.

The rule that the books are inadmissible to prove the loan or payment of money, has been so far departed from in some of the New England states, as to allow the proof, by the book of original entries, of the payment of money not exceeding forty shillings, or six dollars and sixty-six cents, ($6,66). Bassett v. Spofford, 11 N. H., 169; Burns v. Fay, 14 Pick., 12; Union Bank v. Knapp, 3 Ib., 109 ; Prince v. Smith, 4 Mass., 455 ; Wetherell v. Swan, 32 Me., 247: Richardson v. Emery, 3 Foster, 220.

The exception may have some show of necessity, if not of principle, to support it. Our statute, however, has made no such distinction, as that small sums of money may be proved by a party’s books of account, but that large sums shall not be so proved. If allowed at all, the privilege must be strictly guarded, and only admitted in cases where the jury may be of opinion, that the party is without any other proof; and that there has been such a course of continuous dealing between the parties, as that small sums of money passed between them in the ordinary course of business, and became the legitimate subject of a charge in book account, by one against the other. If they should so judge, we think they should be at liberty to allow the same. See Veiths v. Hagge, 163.

Judgment reversed.  