202 N.W. 740 | Minn. | 1925
Plaintiff put in evidence its account books, embracing cash book, journal and ledger, known in the record as Exhibits A, B and C. The account with defendant included both cash grain transactions and hedging transactions. Practically all the items in the account arose out of transactions on the floor of the Chamber of Commerce. At the time plaintiff's employe made the trades, he made memoranda on trading cards or slips. At the close of the day's session these trading cards were immediately taken to the office and from them entries were made in the day book and journal. These cards are not kept as permanent records. These memoranda or trading cards are made as a mere temporary means of securing accuracy in making the original entry in the account books and were never intended to be preserved as the record of such sales. An effort has *337
been made to challenge the books on the ground that they do not contain the original entry, and it is asserted that the memoranda trading cards are the original entries. This position is untenable. The account books are admissible in evidence without the production of such memoranda. Lampert Lumber Co. v. Fleisher,
In connection with the offer of the books above mentioned, plaintiff also offered in evidence a book marked Exhibit D, being a record of purchase and sale of options or futures. At the top of each page in this book is printed, "Memoranda of Trades for account of _____________________," and, on the leaves offered in evidence, defendant's name was written. The sheets are ruled and the columns headed in print, viz., place, month, commodity. Then under a general head of "Bought" are columns: Date, quantity, price and No. Another general head is "Sold" with like subheadings under it. Then a column headed "Profit" and another "Loss." These last two were not used. As an illustration of entries we have: Place, Minneapolis; month, May; commodity, rye; Bought, date April 5; quantity, 5 (meaning 5,000 bu.); price 1.80 1/2; sold, date April 9; quantity 5 (meaning 5,000 bu.); price, 1.80, No. 6,465. The number identifies the customer.
This record is promptly made from the card memoranda furnished by the man on the floor of the chamber. The record book, Exhibit D, is not an account book. It is a record of the matter entered therein. It is an important record kept in the regular course of business with entries made by those authorized to make them and at the time of the transaction. It was properly verified. It should have been received in evidence, not as an account book, but as a record. Sullivan v. M. St. Ry. Co.
Upon the exclusion of this record, plaintiff attempted to prove its alleged hedging account by means other than by account books, and offered in evidence Exhibit G which was a carbon copy of the *338 written portion of a confirmation filled out on a printed blank so that the original which plaintiff mailed to defendant in confirmation of purchase would be in substantially this form:
Of Whom Bght Quantity Delivery Property Price Time Carg. 5M July Rye 1.25 1.10 #7350
Confirmation of sales was made on suitable blanks of the same general character.
With Exhibit G plaintiff offered 34 other exhibits of like character, but not a single one of all these confirmations, except Exhibit G, gave the name of the person with whom the transaction was had, nor is the place of transaction named. They do not comply with section 10491, G.S. 1923. Exhibits G1 to G55 were copies of letters from plaintiff to defendant in which many of the confirmations were inclosed and the letters themselves disclosed transactions indicating that plaintiff was claiming to be making the deals in futures for defendant. The offer did not include any communications from defendant. Exhibits G and G1 to G55 were excluded as incompetent, irrelevant and immaterial. These letters like the confirmations, made no attempt to comply with section 10491, G.S. 1923. The referee excluded this evidence because of the failure to comply with section 10491 and did so upon authority of Bolfing v. Schoener,
Plaintiff says that an open mutual account constitutes but a single cause of action. This is true. American B.H.O. S.M. Co. v. Thornton,
The items on the account books received in evidence were segregated and those items relating to cash grain were transcribed to Exhibit 8 and other items were transcribed to Exhibit 9. The reception in evidence of the books of account made a prima facie case in favor of the plaintiff for the amount of its claim, but the referee and counsel fell into an apparent error in believing that the evidence in the case did not embrace that part transcribed to Exhibit 9 which exhibit was excluded. The referee and counsel apparently overlooked the fact that the original of this exhibit was in evidence and they went on the erroneous theory that Exhibit 9 and that of which it was a copy were to be considered only in the event of the reception in evidence of Exhibit D which was erroneously excluded. Under such circumstances a new trial should be had.
Plaintiff has dealt in future trades at a loss. Whether it has done this at the request of defendant in the regular course of hedging, or whether defendant has carried on gambling operations through plaintiff, or whether defendant's manager has for himself conducted gambling transactions through plaintiff in the name of defendant, under circumstances charging plaintiff with knowledge thereof, are questions which are not before us, but if on another trial defendant wishes to assert that any of plaintiff's claim arose from gambling transactions, prompt application should be made to amend its answer so that the claims of the respective parties may be fully litigated.
A new trial is granted. *341