37 Mo. App. 567 | Mo. Ct. App. | 1889
delivered the opinion of the court.
This is an action to recover certain over-payments, alleged to have been made by the plaintiff to the defendant through mistake of the plaintiff and the fraud of the defendant. The answer was a general denial. The parties went to trial before a jury, and the defendant had a verdict and judgment, from which the plaintiff prosecutes this appeal.
I. The first error assigned is the exclusion of the shipping-book of the plaintiff which the plaintiff offered
The case of Shepard v. Bank of Missouri, 15 Mo. 143, does not seem to go against the rule thus stated at all; for that was the case of a stated account. But if it
The decision of the question is somewhat embarrassed by the language of Judge Wagner in Smith v. Beattie, 57 Mo. 281, 283: “ The defendants proved by their book-keepers and clerks that the books were accurately kept, and they testified to the universal custom in the bank, as to how the entries were made in the regular course of business; that the entries were made and the books written up each day from the checks of the customer or the tickets of the teller, and that the books were then balanced to verify their accuracy. This was almost precisely the testimony that was admitted in the case of Shepard v. Bank of Missouri, 15 Mo. 143, and was then regarded as too plainly admissible for argument.” But this language was evidently founded on a misapprehension of what was held in Shepard v. Bank of Missouri, supra, and, besides, it ignored the subsequent-decision of the court in Hissrick v. McPherson, 20 Mo. 310. Moreover, we do not find that rule as there laid down has ever been approved in any subsequent case, or that the case has ever been subsequently cited. Nevertheless, we should feel bound to follow and apply the doctrine there stated, if it had been necessary for the-judgment of the court. But we find that that case is unlike the one now before us in a very important-particular. The books of the defendant bank, which were there- admitted in evidence for the defendant, had been produced in court at the instance of the plaintiff. Now, it is a rule of evidence that where books or papers are produced at the instance of the opposite party, the party producing them may put them in evidence, although he would not otherwise be entitled to do so. 1 Greenl. Ev., sec. 563. The rule and the reason for .it are fairly stated by Bigelow, J., in Clark v. Fletcher,
Nor do we see any ground on which the present case can be taken out of the rule, on the theory that the shipping-books were a part of the res gesta. We see no distinct evidence of the fact that the defendant examined the entries in the books or assented to their correctness. In the case of Hanson v. Jones, 20 Mo. App. 596, where we held the books admissible, the parties had accounted together and settled on the basis of an account contained in the plaintiff ’ s books of account, and there was a mistake against the plaintiff which appeared on the face of the account. They were, therefore, regarded by us as admissible, on the footing of being admissions by the defendant against his interest, and as. being relevant evidence, in that they showed the manner in which the settlement had been made and the balance struck, and thus showed the existence of the error and how it arose. We conceded that, if these facts had been out of the way, the books would not have been admissible as original evidence to prove the plaintiff’s demand against the defendant. If such a state of facts had been disclosed by the evidence in the case now before us — if the evidence had tended to show that the plaintiff and the defendant had accounted together on the basis of the entries in these books, we should say that this case would be governed by that decision. But it simply appears in this case that another employe of the plaintiff named Timmons professedly drew off from these books the statements on which the account of the defendant was settled by the plaintiff ’ s secretary and cashier, every Saturday night, and that the statements
In Weadley v. Toney, 24 Mo. App. 304, Judge Ellison, speaking for himself, took occasion to say that he thought the view of Doctor Grreenleaf, which would admit such book entries on the footing of necessity (1 Greenl. Ev., sec. 118) is the correct view. The members of this court are all of the opinion that it is •desirable that the rule laid down in the Missouri cases should be reconsidered. We fear that it has produced a failure of justice in this case. We do not see how, under the rule which obtains in this state, a merchant can prove an account consisting of many items, especially after the lapse of much time from the transactions. Only a reckless or dishonest witness would take such an account, and say that, from his memory, refreshed by it, he could testify independently to the correctness of the different entries. But we have no power to reconsider the rule, nor can we deviate from it in deference to the decisions of the courts of other states, however much we may respect them. We are, therefore, unable to say that the court committed error in excluding these books.
II. If the court committed no error in ruling out these books of original entries, for stronger reasons it committed no error in excluding certain statements prepared by the plaintiff ’ s secretary and cashier and its superintendent, and verified by the testimony of the persons who prepared them, which statements had also been made from books of original entry kept by the plaintiff, which books had been verified by the parties
III. At the request of the defendant, the court gave the following instruction: “The court instructs the jury that, if they believe from the evidence in this case that the plaintiff had in its possession statements showing the amount earned by the defendant each week, and that the plaintiff, by its agents,. designedly lost or destroyed such statements, then the jury may take such fact into consideration in arriving at their verdict.” The only evidence on which to base this instruction consisted of testimony to the effect that such statements were made out by Timmons, an employe of the plaintiff, and produced either by Timmons or the defendant to the plaintiff’s secretary and cashier, as the basis of the weekly settlements which were made with the defendant, as already stated; that those statements were placed on a metallic file and were afterwards strung together by the office boy and placed upon a certain shelf in the plaintiff’s office, and that they had disappeared and could not be found,, although the most diligent and thorough search had been made for them. Beyond this there was no evidence pointing in the direction that these statements had been designedly lost or destroyed by any agent of the plaintiff acting in its behalf. It is quite plain that the statements were important instruments of evidence on behalf of the plaintiff. This appears from the fact that the plaintiff was obliged to give secondary evidence of their general nature, after laying a foundation therefor by proving their loss. It is also apparent that this action proceeds on the theory that a criminal conspiracy existed between the defendant and Timmons, another employe of the plaintiff, to cheat and defraud the plaintiff. If the jury could be authorized to resort to suspicion or surmise,
IY. Error is assigned upon the giving, at the request of the defendant, of the following instruction: “The court instructs the jury that the law presumes that each of the payments of money testified by Claus [the plaintiff ’ s secretary and cashier] to have been paid to the defendant was money due defendant from the plaintiff, and the burden is on the plaintiff to satisfy the jury, by a preponderance; of evidence, that such money so paid was not due the defendant.” The plaintiff’s objection to this instruction is based upon the use of the expression, “by a preponderance of the evidence.” It is true that the judge may properly refuse .an instruction couched in technical terms (2 Thomp. on Trials, sec. 2327, and cases cited). It has been held proper to refuse an instruction containing the expression “preponderance of evidence.” Clark v. Kitchen, 52 Mo. 316. But in the subsequent case of Berry v. Wilson, 64 Mo. 164, our supreme court had occasion to consider
But for the error of giving the instruction pointed •out in the third paragraph above, the judgment of the ■circuit court will be reversed and the cause remanded.