Brown v. Warner

116 Wis. 358 | Wis. | 1903

Maeshaxl, J.

From the foregoing statement it will be seen that tbe primary vital question to be solved upon tbe trial of this case was, Did tbe parties to tbe litigation make tbe contract alleged in tbe complaint ? Plaintiff was allowed to introduce in evidence, generally, to prove bis cause of action, an account book in which transactions were entered in debit and credit form, as having occurred between bim and defendants, in harmony with bis testimony as to what tbe contract was. It is not claimed that tbe book was admissible as independent evidentiary matter other than under secs. 4186 and.4187, Stats. 1898. Tbe first section makes an account book, when verified in tbe manner prescribed, presumptive proof of tbe charges therein contained, subject to this limitation contained in tbe second section:

“Such books . . . shall not be admitted as testimony of any item of money delivered at one time exceeding five dollars, or of money paid to third persons, or of charges for rent.”

Tbe book here was not verified as tbe statute required in several material particulars not necessary to enumerate. It contained charges of money paid at one time exceeding $5, and of money paid to third persons. Nevertheless it was received in evidence against proper objections, without any limitation whatever as to its evidentiary effect. That was error.

Eespondent’s counsel suggests that tbe ruling of tbe court above disapproved was not harmful to appellants in any event, because they admitted upon tbe trial that respondent was •entitled to recover the full amount claimed in the complaint if he was entitled to recover at all, leaving only to he determined two questions: Eirst, was the contract between the parties as alleged by plaintiff ? Second, was the cause of action upon the contract kept alive by payments made thereon within the six years immediately preceding the commencement of the .action? Such suggestion would satisfactorily answer the assignment of error on this branch of the case were it not for the fact that the evidentiary effect of the book was not limited, •either by the offer thereof or the ruling of the court admitting it. It is considered that the book may probably have been considered by the jury, under the circumstances, on the issue respecting the nature of the contract, and have turned the scale in plaintiff’s favor. On that, it was clearly incompetent evidence. It was in the nature of a mere declaration by plaintiff in his own favor, not within any exception to the general rule excluding such declarations. Therefore, we can'■not avoid the conclusion that the ruling of the court constitutes reversible error.

The court permitted two letters, written by B. E. McMillan and brother to E. E. Warner, one of the appellants, to be admitted in evidence against objection by respondent’s counsel. One contained a request to Mr. Warner to pay a person named $31.50, and the other contained a like request as to another person for the payment of $11.50. Together with the letters there were admitted, under objection, two receipts. The letters and receipts, with the evidence of plaintiff, were to the •effect that the latter, by authority of appellants, executed the request contained in such letters by collecting rents for the former and'making the payments therewith, taking therefor the receipts in his own name. In the course of remarks overruling the objection to the introduction of the letters and receipts, the court used this language:

“It [referring to such evidence] is simply allowed for the purpose of showing just what-the relations of the parties were, and as to either supporting or contradicting evidence that came in. It is not very material. ... It has a bearing upon tbe relations of the parties. ... It simply goes to-the question of whether he had authority to collect the rent, which is really immaterial in the case when we come right down to it.”

Oomplaint is made, both of the ruling admitting the letters- and receipts, and of the remarks. The papers, in connection with plaintiff’s evidence, did have a bearing on the question of whether he had authority to collect rent for defendants. That seems plain. They were entitled to be received on that theory. The remarks of the court were only to the effect that they were received for that purpose. Since the question of whether plaintiff’s claim was barred by the statute of limitations, turned on whether he was authorized by defendants to apply rent in his hands belonging to them in part payment of their indebtedness to him, it was certainly proper, not only to show that the money rightfully came to his possession, but that he-possessed the requisite authority to apply it to his own use as he did. It is not entirely clear what the court meant in saying that “whether plaintiff had authority to collect the rent or not. is not very material when we come right down to it.” That remarle better have been omitted. If the idea the judge had in mind Avas that the turning point was not whether plaintiff had authority to collect the rent, but whether he had authority to-apply the same upon the alleged indebtedness of defendants-■to him, he was right, though we must confess the language used tended to confuse. We repeat, the remarks better have been omitted, though we are not prepared to hold that the-making thereof is prejudicial error.

For the error in admitting the book in evidence without its-being properly verified and the evidentiary effect thereof’ properly limited, the judgment must be reversed and the-cause remanded for a new trial.

By the Oourt. — So ordered.