83 Minn. 232 | Minn. | 1901
For the third time this case appears in this court. Originally, the action was brought to cancel and set'aside a foreclosure proceeding based on a mortgage upon eighty acres of land belonging to the plaintiff. She was successful in the court below, but on appeal by defendant this court required ás a condition that she
1. It is contended by the plaintiff’s counsel that it was error for the court below to sustain an objection to the introduction in evidence of the so-called “ledger.” This ledger has not been exhibited to this court, and we have no means of knowing its contents. We cannot tell what bearing these contents had upon the issues, or whether they were in point, or, taken as a whole, were at all material at the trial. Assuming, however, that the contents of the book were pertinent and admissible in' a proper case, and, if this controversy was between parties legally affected thereby, the court was clearly right in its ruling. This particular dispute was over the amount of stone which had been taken from part of the mortgaged premises by Hulett’s permission, and under his lease to a man named Glass.
It appeared in evidence that Glass, who personally worked the quarry, kept a small day or memorandum book, in which he entered the height, length, width, and quality of each car of stone as loaded upon cars standing upon ihe side track. He also entered in this book, which was kept in the quarry, the name of the party to whom the stone was to be shipped. \ Each night he carried it to the witness Gasper, who was not at the quarry, but kept a store near by. Gasper then figured out the number of feet of stone on each car, entered this amount upon the so-called “ledger,” and charged it to the proper party. What he did, according to his own testimony, was to ascertain how many cords of stone there were on each car, carry out the value thereof on the ledger, together with the number of the car, the ownership initials thereon, .and the party to whom the stone was shipped. He knew nothing personally of the amount of stone on each car, or taken from the quarry, or the value thereof. In fact, all of his information was derived from Glass. Hulett, who was then living, had no control over the quarry, or the work going on there, nor was-Glass or Gasper representing him in any manner.
Even if the ledger had been the book of a party to this -action, and an original book of entries, no proper foundation was laid for its introduction, for ther'e was a total failure to comply with the
“An entry or memorandum, whether in a book or in any other form, made in the usual course of business, and at or about the time of the transaction, by a person not a party to the action, who is shown to have had means of personal knowledge of the fact recorded, is competent evidence of such fact: (1) If the person who made it is produced and verifies the handwriting as his own, and testifies that it was so made, and correct when made, although he may have no present recollection whatever of the transaction; or (2) if the person who made it is dead, and his signature or handwriting is proved, and he does not appear to have had any interest to falsify. If living, though he be without the jurisdiction, he must be produced.”
And this rule is qualified by the authorities cited to the effect that the entries must appear to have been made in the regular course of business, under such circumstances as to import trustworthiness; and it is for the court to say, in the first instance, whether the record is of such character, and his decision will not be interfered with unless clearly wrong. Riley v. Boehm, 167 Mass. 183, 45 N. E. 84. And such entries are not admissible if made on information from a third person, although communicated by him in the course of duty. Thomas v. Price, 30 Md. 483; White v. Wilkinson, 12 La. An. 359. Should these rules be adopted in full, the book was inadmissible, because the entries were not made by a person who had any personal knowledge of the transactions to which they related, and the record made by him was wholly based upon information received from a third person. See also 9 Am. & Eng. Enc. (2d Ed.) 937.
But counsel contend that, independent of this book, there was evidence tending to show the amount and value of the stone re
Order affirmed.