Burraston v. First National Bank

| Utah | Sep 5, 1900

McCarty, District Judge,

after stating the foregoing facts, delivered the opinion of the court:

Appellant complains of and alleges as error the admission of testimony as to the statements made by Sawyer at the time he examined the books of the bank containing the account under consideration, wherein he expressed himself as being satisfied with it on the grounds: First, that Sawyer at the time was Burraston’s attorney, and therefore he, Burraston, could not be prejudiced by any statement made by his attorney respecting the condition of the account; and second, that the statement was a conclusion and not one of fact, and that it was hearsay testimony. Burraston could neither read nor write and did not understand figures. He was therefore unable to examine the account himself to detect errors in it, if any there were. Sawyer was there in his behalf acting for him and with authority as testified to by Burraston, “to straighten out the account. ” The relationship of attorney and client did" not exist between them in the sense that the term is ordinarily used and understood. Sawyer was there as Burraston’s accountant to examine and “straighten out the account,” under consideration, and for that purpose he was Burraston’s agent.

Mechem on Agency, Secs. 714, 715 and cases cited.

Sawyer having gone to the bank in company with Bur-raston, and as his agent examined the account in question, the statement complained of was admissible in evidence as tending to support the allegation in defendant’s-answer of an account stated. 2 Greenl. Ev. (14th ed.) Sec. 125.

The books of the bank showing the different entries made in Burraston’s account in connection with the notes given by him to the bank and the checks issued by him on the bank that had been paid, cancelled and returned to him, were admitted in evidence over his objections. Counsel for appellant contends that there was no evidence introduced showing that the notes were executed and the checks issued by Burraston, and that therefore the admission of the books, notes and checks in evidence was error. Most of the notes and checks under consideration were given and issued while Hague was cashier for the bank, and many of them were signed by him as a witness. At the time the case was tried Hague was a convict and serving a term of imprisonment in the State prison in Salt Lake City, Utah. Before the books were admitted in evidence, the parties (bookkeepers who kept the books) were called and identified them and testified to making the different entries in Burraston’s account, and that they were correct.

The record shows that the notes and checks in question when paid were returned to Burraston, many of which were handed to him in person by the cashier at different times, and others were transmitted to him through the mail; and on no occasion did he make any objection to or challenge the validity of the notes so paid by him, or the checks issued against his account that were paid, cancelled and sent or handed to him by the bank. This, coupled with the fact that he received from time to time statements showing the condition of his account while he was doing business with the bank, to which statements he made no objections and offered no corrections, together with the further fact that after he ceased doing business with the bank, he received an itemized statement of all the different transactions, including those relating to the notes, he had with the bank, to which statement he made no objection for more than three years after its receipt by him, we think was, at least prima facie proof of the execution of the notes and the issuing of the checks in question by Burraston. We are of the opinion and so hold that the books, notes and checks were properly admitted in evidence.

Counsel for defendant contend that there was an account stated between the parties which completely ended plaintiff’s right of action. We have made a critical examination of the record and are decidedly of tbe opinion that the evidence conclusively showed that there was an account stated.. There was no conflict in the evidence on this point. In fact the testimony of Burraston tended to support this theory of the case.

Defendant’s motion for a non-suit, made at the conclusion of the testimony for plaintiff, and after he had rested his case, should have been granted, as he failed to make out a prima facie case against the defendant.

There are several other errors assigned but we do not deem it necessary to consider them.

We find no reversible error in the record. The judgment of the trial court is therefore affirmed. The costs of this appeal to be taxed against the appellant.

Bartch, C. J., and Baskin, J., concur. s