122 Ky. 145 | Ky. Ct. App. | 1906
OPINION by
— Affirming.
The one question in this record is whether or not
“Twelve months after date I promise to pay Eeuben Clark the sum- of five hundred dollars, for value received of him with interest from date. This October 11th, 1900.
his
“Calvin X Clark.”
mark
“If this note is not paid within the time mentioned above, he is to have my Buffalo land. This'land is known as my land off of the old home farm of my father’s land I bought at sheriff’s sale.
his
‘ ‘ Calvin X Clark. ’ ’
mark
To that part of the cross-petition of Eeuben Clark in which he sought to enforce the above instrument of writing against the estate of his dead brother, Calvin Clark, the appellees, who are the infant children of Calvin, by their guardian ad litem interposed a plea of non est factum, which contained, among other allegations, the statement that the note sued on “is a forgery and was forged by the hand of Eeuben Clark for the fraudulent and corrupt purpose of cheating and defrauding these infant defendants out of what their father left them a,s a heritage. # * * ” Upon the trial of this issue the court adjudged that the note in question was not established as the act and deed of the decedent, Calvin Clark, and dismissed the cross-petition in so far as it sought a judgment enforcing the instrument. From this judgment, the appellant is here on appeal.
“Calvin Clark, debtor to Reuben Clark for loaned money, one hundred dollars ($100.00). November, this the 14th, 1898.
“January 16th, 1899, loaned money one hundred dollars ($100.00).
“May 27th, 1898, loaned money fifty' dollars ($50.00).
“April 15th, 1900, loaned money one hundred and fifty dollars. ($150.00).
“This account settled October 11th, 1900, by note.”
This testimony presents the question as to whether or not this account, so' kept, can be properly established by the testimony of the appellant. We think not. In the ease of Proctor v. Proctor’s Adm’r, 118 Ky. 474, 81 S. W. 272, 26 Ky. Law Rep. 348, we undertook to construe subsection 6 of section 606 of the Civil Code of Practice, and to' mark out the limitations to theright of persons to testify to acounts kept in. their own interest against the estates of decedents. Subsection 6 of section 606 is as follows.: “A person may testify for himself as to the correctness of original entries made by him against persons who are under no disability — other than infancy — in an accounting, according to the usual course of business, though the person against whom they were made may have died or have become of unsound mind; but no person shall testify for himself concerning entries in a book, or the contents or purport of any writing, under the control of himself, or’ of himself and others jointly, if he refuse or fail to produce such book or writing, and to make it subject to the order of the court for the purposes' of the action, if required to do' so by the party against whom he offers to testify.”
The a,count in this case cited was a claim for credit for several sums of money alleged to have been paid out by the defendant for his sister, and in proof of these payments the former offered a book kept by bjrn. Exception was filed as to the competency of this evidence. After quoting’ subsection 6 of section 606 of the Code, the court, by review of the authorities, undertook to show what character of items kept in a
If the hook containing the account of sums alleged to have been paid on a note could not he proved, under subsection 6, in the interest of the keeper of the book, much less so can the appellant in this case be heard to say in his own behalf that he kept a book showing loans of money a,t various times to the dead man in sums of from $50 to $150. This is clearly not the kind of account referred to in the case cited, nor did the appellant rely upon the account so kept, but undertook, as he says, to close it up by note, and when confronted with the fact that the note, for want of proper attestation, did not establish a prima facie case in his favor, he relied upon the account. It would require a casuistical mind, indeed, to discover a reason for refusing to allow appellant to testify as to the execution of the note by his dead brother and permit him to establish the items of which its consideration is said to consist, and its execution and delivery by testifying that he kept an account showing these facts. The same principle which denies him the right to tell of the execution of the note bars him from testfying as to the account. It was as. easy to manufacture the account as to forge the note. As said in the opinion in the case cited, the principle which permits a party to testify as to he items of original entry in his own behalf is limited to that class of accounts which usually could not be established in any other way, and is
Judgment affirmed.