¶1We only propose in this case to determine, . whether the preliminary proof warranted the introduction of appellee’s account books as evidence. This court has adopted the rule, that in cases of open accounts, composed of numerous items, where the entries are proved to have been made by the party himself when he had no clerk, and has no receipt or admission by the party charged that the articles were received, and proof is made that some of the articles were delivered, and that his books have been fairly kept, the books may be admitted in evidence. Their admissibility is placed upon the grounds, that if there was no clerk or servant, who could know of their delivery, a resort must be had to the next best evidence. Bayer v. Sweet, 3 Scam. 120; Waggeman v. Peters, 22 Ill. 42.
¶2This character of evidence is only admissible from necessity, and to prevent a failure of justice. It is a species of secondary evidence, only authorized when it appears from preliminary proof that there is no witness by whom the sale and delivery of the articles charged, can be proved. In this case the evidence shows, that during the greater part if not the whole time, these entries purport to have been made, appellee had clerks or servants employed in his establishment, who aided in making sales, and who had ample means of knowing whether appellant purchased the goods. These witnesses should have been called, as the presumption is, that they could have proved the sale and delivery. The proper foundation was not laid for the introduction of appellee’s books of account, and the court below erred in permitting them to be read in evidence.
¶3The judgment must be reversed, and the cause remanded.
¶4Judgment reversed.