Booker v. Benson Hardware Co.

113 So. 256 | Ala. | 1927

The action is upon an account of a retail merchant, brought by an assignee of the account. The pleas were in short by consent. The plaintiff filed with the complaint an itemized and verified statement of the account, and defendant a counter affidavit denying its correctness and his liability as to the whole amount thereof. Code, § 7666.

Several assignments of error go to the ruling of the court admitting in evidence the account book of the merchant.

In Loveman, Joseph Loeb v. McQueen, 203 Ala. 280,82 So. 530, this court construed Code of 1907, § 4003, touching the admission of books of account, in the light of the rule theretofore in force and decisions of the state of Georgia from which our statute was taken. Difficulties were there pointed out as to the rules at common law, and still retained in the statute.

In the Code of 1923, § 7701, subdivision 3 of the former statute was entirely rewritten in the following language:

When any party or interested person, manager or other official of any association or company, testifies to his or their account book and the items therein contained, that the same is a book of original entries, and that the entries therein are true and just, and were made by himself or his employé, deceased or living, in the usual course of trade, and of his duty or employment to the party so testifying; thereupon the said account book and entries shall be admitted as prima facie evidence in the case upon the matters as shown by said account book."

Subdivision 4 was added covering accounts entered by a bookkeeper from salesmen's memoranda, and subdivision 5, providing for secondary evidence in case of the loss of the books of original entry.

Under subdivision 3, as now amended, the merchant, his manager, or an officer of a company, may give the evidence prescribed, although the entries were made by his employees. Although he is required to testify that the entries are just and true, the further terms of the statute imply that it is not necessary that the witness shall have personal knowledge or memory of the actual sales and the prices set down. He must know that it is a book of original entry, was kept in due course of business by those charged with that duty, and that the account is correct upon knowledge, information, and belief. It commits the conscience of the witness to the genuineness and correctness of the account kept in due course of business. Upon such evidence the book of original entry becomes prima facie evidence of the correctness of the account. It is not necessary to call the clerk or bookkeeper, if available, except in cases provided in subdivision 4.

Under these rules the ledger account was properly admitted in evidence. True, it was only a partial account, beginning with item of June 7, 1920, "To Bal. Old book, p. 271, $347.41." But no objection was directed to this item. The objection to the book account as a whole, not pointing out this item, was overruled without error.

The itemized and verified account filed with the complaint was, in the first instance, correctly held not evidence, in view of the counter affidavit of defendant. It included hundreds of items covered by the complaint, running from November 15, 1919, down to June 7, 1920, when the ledger account began. We may note that the balance on this statement as of June 7th varied some $13.81 from the balance as carried forward to the ledger of same date.

But in the course of the trial the witness Barrow used this statement in testifying, and, on evidence tending to show its correctness as taken from the books, it was admitted in evidence. No predicate was laid for offering secondary evidence of the book account. For all that appears, the old book from which it was largely taken was in the custody of the witness, the assignor of the account, and within the jurisdiction of the court. The statute admits books of original entry, not mere transcripts therefrom, except in the case provided by Code, § 7666.

Nor was this statement admissible as a mere memorandum of the testimony of the witness. It was admitted that the witness had no personal knowledge of many of the items. He could not get his knowledge of their correctness from the statement checked with the books, then offer the statement as a memorandum of such testimony. This is but a method of offering secondary evidence of the book account, with no predicate therefor. So far as this statement checked with the items of the book account offered, it was harmless, but not so as to the long list of items on the old book never offered. Appellee suggests that, after admitting this statement over objection, it was excluded. But, considering the entire record, it appears the witness continued to use it in giving testimony, and the last ruling in the record appears to overrule a motion to exclude it. For this error the judgment must be reversed.

Reversed and remanded.

SAYRE, GARDNER, and BROWN, JJ., concur.