108 Mo. 277 | Mo. | 1891
This was an action to recover overpayments alleged to have been made by the plaintiff to the defendant. A trial was had before a jury, which resulted in a verdict and judgment for defendant. The St. Louis court of appeals, to which the cause was appealed, reversed the judgment and remanded the cause for error in the instructions. That court, however, sustained the ruling of the trial court in excluding a shipping book offered in evidence by the plaintiff. On this question one of the judges deemed the opinion contrary to Smith v. Beattie, 57 Mo. 281, and for this reason the cause was then certified to this court.
Defendant had a contract with plaintiff whereby he was to receive a specified price' for hauling wheat and flour to the mill and a specified price per barrel and sack for hauling flour and other mill products from the mill to different points in St. Louis and East St. Louis. ' Books were kept at the plaintiff’s warehouse,
The shipping book, offered in evidence by the plaintiff and excluded by the court, was m.ade up and kept in the following manner: Orders were sent from the office at the mill to the warehouse to send designated amounts of flour, etc., to designated places. The orders were then entered in the shipping book by Timmons, the shipping clerk, or by Mr. Warren, who had a general supervision over all the business at the warehouse. The orders were then copied into a small handbook for the use of the foreman, who delivered the articles to defendant’s teamsters, made a note of the fact and returned the book to the clerk, who made entries on the shipping book, showing, among other things, the delivery of the articles to defendant. Mr. Warren says he always compared the orders with the book when made up, and then returned the orders to the mill office; that he knew the flour and other mill products were delivered to defendant from the information received from the small book, and in some cases from personal observation. These returned orders were lost or destroyed. Timmons, the shipping clerk, was not called as a witness. With this preliminary proof the
In Hissrick v. McPherson, 20 Mo. 310, plaintiff brought an action on an account for meat sold from day to day. lie offered in evidence his daily account book, supplemented by an affidavit that the account was just and correct. This court held tha;t the book, the entries having been made by the plaintiff himself, were not competent evidence, though supported by his supplementary oath. That case was, doubtless, ruled according to strict rules of common law. It constitutes the basis of the ruling of the court of appeals in the case in hand and in some other cases.
When the Hissrick-McPherson case was decided, parties to a suit could, not testify in their own behalf. It remains to be seen what is the effect of subsequent legislation and subsequent rulings of this court. Section 1, of chapter 144, General Statutes, 1865, for the first time made parties to a suit competent witnesses in their own behalf. An exception is made where one of the parties to the contract or cause of action is dead or insane, and concludes: “ Provided, further, that, in actions for the recovery of any sum or balance due on account, and when the matter at issue and on trial is proper matter of book account, the party living may be a witness in his own favor, so far as to prove in whose handwriting his charges are, and when made and no further.”
The next section is a new enactment, and after stating that the court may, where the matter at issue and on trial is a proper and usual subject of charges on books of account required either party to produce his account books, declares: “And no disputed account shall be allowed upon the oath of the party, when it shall appear that he has a book of original entries, unless such book shall be produced upon reasonable request.”
The first section ‘is almost an exact copy of section 24, chapter 36, General Statutes of Yermont of 1862; and-
If a living party to a cause of action may introduce his books in evidence in his own favor, as plainly implied by the proviso, then what possible reason can be assigned why he should not do the same thing where both parties to the cause of action on trial are living ? And the last clause of the second section leaves a very strong inference that the legislature deemed books of original entry primary evidence. We think these sections were designed to and do give complete recognition to the rule which then prevailed and now prevails in most of the states and is sometimes called the American rule; namely, that contemporaneous book entries are evidence for as well as against the party by whom they are kept. Says Wharton: “In the United States, a
At this place it may be well to notice the rulings of this court made since 1865. Smith v. Beattie, 57 Mo. 281, decided in 1874, was a suit in equity to enjoin a sale under a deed of trust. The defendants were bankers. The plaintiff' claimed that the notes secured by the deed of trust were given as security for what might be due defendants on a final adjustment of accounts, and that defendants were indebted to him for moneys received and not accounted for. It appears the defendants brought their books into court pursuant to an order made on motion of the plaintiff, but the plaintiff did not use them. The .defendants then proved by their bookkeeper and clerk that the books were accurately kept in the regular course of business, that the entries were made and books written up each day from tickets of the teller and checks of the customer, and that the checks of the plaintiff could not be produced because delivered up to him. With this foundation the books were given in evidence, and this court sustained’ the ruling of the trial court.
In Nelson v. Nelson, 90 Mo. 460, it was conceded on both sides that account books of a deceased person, when properly kept, are evidence in favor of the estate. In that case we held that certain items of the account should have been excluded, because it appeared upon the face of the book produced that the items were not made contemporaneous with the transaction recorded; but that case concedes the rule to be that book accounts are admissible in favor of the party who keep them when the entries are. made at the time of the transaction, and section 118 of Greenleaf on Evidence is cited with' approval.
In Mathias v. O'Neil, 94 Mo. 520, abookkeeper ata bank was able to say he made certain entries, thar the books were kept correctly, and that he believed them to be correct, but he could not recall the particular transaction. On this showing he was allowed to state his belief as to the fact recorded, and the ruling was sustained. Such evidence is sufficient to lay a foundation for the admission of the books themselves. Bank v. Quiver, 2 Hill, 531.
The cases of Smith v. Beattie, Nelson v. Nelson and Mathias v. O'Neil show a decided tendency to a far more liberal rule than that which prevailed prior to 1865. They are in perfect accord with what is called the American rule. Indeed, one of them gives complete adherence to that rule — a rule which we have said was adopted by the General Statutes of 1865.
Since a party may testify in his own favor, it must be conceded that he, as well as his clerk or bookkeeper, may refresh his memory from entries made by him or under his eye, and then testify as to the fact with his memory thus refreshed. ' Now, in cases of an account composed of many items, all this means nothing more
The abstract says another shipping book covering part of the time in question was placed in the hands of Timmons for the purpose of verifying a certain statement, that “ the book and statement so given to Timmons were never seen afterwards by appellant, and the company was unable to further account for their loss.” This is only the appellant’s conclusion as to what his evidence disclosed concerning the loss of the book, and not an abstract of the evidence on that subject. We can only say that, upon due proof of the loss of the book, evidence of its contents should be received. Ins. Co. v. Weide, 9 Wallace, 677; Holmes v. Harden, 12 Pick. 169.
As the court of appeals reversed the judgment and, remanded the cause for other errors, the judgment of that court is affirmed.