Bader v. Ferguson, 118 Mo. App. 34

Bader v. Ferguson

118 Mo. App. 34 | Mo. Ct. App. | 1906

GOODE, J. —

This action is on an account for goods sold and delivered by W. H. Huffman, deceased, to defendant. Plaintiff Bader is tbe administrator of tbe Huffman estate. Huffman conducted a mercantile business in tbe town of Carutbersville, Missouri, during bis life and defendant dealt with him. Tbe account contained in the transcript extends over tbe interval from January 2,1893, to April 1,1901, and tbe balance claimed to' be due is $705.77. An account between tbe parties bad been running through some years previous, as appears from tbe fact that tbe one before us opens with a balance carried over from tbe years 1891 and 1892, and from tbe referee’s report in which four items dated May 27, 1890, are noticed. We know not why tbe account in tbe transcript fails to show those items. Tbe cause was referred to C. G. Shepard, who reported in favor of judgment for plaintiff for $444.46. Exceptions were filed by defendant to this report, but they were overruled, judgment entered in accordance with tbe report and defendant appealed.

Tbe case is in all respects like tbe one of Bader, *36Admr. against H. C. Schult et al., 118 Mo. App. 22. The two causes were brought to the same term of court, were referred to the same referee and the evidence in both taken at the same time. The attorneys agreed that the evidence in the Schult case should be considered in this one as far as it was revelant and competent. It is assigned for error that the court admitted in evidence the account books of the deceased; there being no evidence to show that the entries were contemporaneous with the transactions to which they referred. There was ample evidence on that subject, as we held in the other case. The evidence on the question was the same in this case and proved the entries to have been original and made at the dates of the sales.

It is further objected that the account sued on was against defendant’s husband and not against her, and certain entries in the account are said to support this contention. For instance, one like this: “Nov. 3, 1893. To Mchdse by wife. 0.80.” Also a credit of $11.26 allowed defendant for salt received from her husband. This account extended over years and stood on Huffman’s books in the name of the defendant and not in her hus-. band’s name. Mr. Ferguson’s testimony went to show that during that period, with his wife’s knowledge and consent, he gave orders and signed checks in h.er name frequently and acted as her general agent. On his own testimony and other evidence in the case, the referee found that defendant allowed her husband to buy goods of Huffman and have them charged to her account and to sign orders in her name. These facts sufficiently account for such careless entries as the foregoing to prevent us from setting aside the referee’s finding that the indebtedness was defendant’s; which was in truth, hardly denied.

The main defense in the case was that certain credits had not been allowed to defendant in the account. In all the instances of claims for other credits than those shown on Huffman’s books, the referee found *37in defendant’s favor, as he did also on her contention that interest should not he allowed on the account; hence she was not prejudiced by those findings.

The account opened with four items under date of May 27,1890. These items were in the following form:

“1890

May 27 Note R. H. Sherrill, 80.00 Int. 4.00 $84.00

May 27 Cash 30.00 Int. 1.25 31.25

May 27 By Hughley rent note 95.00

May 27 J. H. Abernathy rent note 50.00

The son of the deceased testified that, he knew nothing about these transactions except what the books showed.

•The contention of the defendant is that the referee erred in allowing the charge against her for the Sherrill note because that note was not a proper item for a book account. The referee found that the other entries made by Huffman on his books that day, and the debit of the Sherrill note, were all parts of one transaction. It will be seen that one of the debits was for cash received of Huffman and the two credits were for rent notes for $95 and $50 respectively. The conclusion of the referee was that there was an understanding between defendant and Huffman that the Sherrill note should be paid by Huffman out of the credits that day turned over to him by defendant, and that, instead of deducting from the amount of the credits the Sherrill note and the cash advanced and entering the remainder as a credit in favor of Mrs. Ferguson, Huffman simply noted the three items; that is to say, the Sherrill note he was to pay and the sums received from Mrs. Ferguson out of which it was to be paid. Banks and other business establishments are accustomed to make entries of notes and other liabilities and bills receivable on the books and such entries are receivable in evidence when made in the usual course of business. [Smith v. Beattie, 57 Mo. 281; Borgess Inv. Co. v. Vette, 142 Mo. 560, 44 S. W. 754.] We *38are of the opinion that the entry of the Sherrill note on the boohs of the deceased was inadmissible under that rule. No one knew anything about that entry or the others of May 27, 1890, except what could be gathered from the entries themselves; and it is plain that they show no facts to support the conclusion of the referee, which must have been surmise or based on rumor. The Sherrill note matter stands unexplained and there is no proof that it was made in the usual course of business. It rather looks as though it was not, but was an affair unrelated to the usual dealings between Huffman and defendant; for on looking over the account, we find it to be composed entirely of debits for various wares and goods sold and delivered to defendant and credits for payments made. The Sherrill note stands as an isolated transaction and the same might be said, perhaps, of the debit charge for cash on the same day; to which, however, no objection has been made. We think the entry concerning the note is too indefinite and too detached from the usual course of business between deceased and defendant, which was but the ordinary business between merchant and customer, to be admissible. [Shoemaker v. Kellog, 11 Pa. St. 310; Stucklager v. Neel, 123 Pa. St. 53, 60.] If plaintiff will remit the sum of $84 from the judgment within fifteen days the judgment will be affirmed; otherwise it will be reversed and the cause remanded with a direction to the court to sustain defendant’s exception to the report of the referee allowing plaintiff the amount of the Sherrill note and interest on it.

All concur.