153 N.W. 966 | N.D. | 1915
The plaintiff is a Minnesota corporation, whose place of business is located in Minneapolis, Minnesota. It is engaged in the business of manufacturing and selling veterinary and other remedies. On June 3, 1910, the plaintiff entered into a written contract with the defendant, J. P. Doherty, whereby the plaintiff agreed “to fill and deliver on board cars at Minneapolis, Minnesota, his reasonable orders, provided his account is in satisfactory condition, and to charge all goods shipped him under this contract to his account at current wholesale prices.” The defendants, Ed. Evoy and Steve Coliton, signed a written guaranty attached to said contract, whereby they jointly and, severally guaranteed the performance by said Doherty of said
Upon the trial of the action, the plaintiff offered in evidence the written contract and guaranty, and the execution and delivery of such instrument was clearly established. The only testimony offered by the plaintiff to prove a sale and delivery to Doherty by the plaintiff of any goods, and the value thereof, was the testimony of Frank Collins, which was as follows:
Q. What is your name?
A. Frank Collins.
Q. Where do you live?
A. Minneapolis.
A. Tes, sir.
Q. What officer?
A. President and treasurer.
Q. Iiow long have you been connected with the plaintiff as an officer ? .
A. I was secretary first. I have been with the company nearly four years as an officer. •' -
Q. Do you know whether or not this contract was accepted- on behalf of, or by, the plaintiff, Eaton Chemical Company ?
A. Yes, sir.
Q. And do you know about the time — the date of the ácceptance of it? .
A. About June 3d, I think.
Q. About June 3d, 1910 ?
A. About June 3d, 1910.
• Q. Do you know whether the goods were furnished under -this contract to the defendant, Doherty, at that time ?
A. Yes, sir.
Q. Do you know how much, or at what price ?
A. Yes, I have the amounts here, and shipments.
Q. You may state what quantity and what price goods were furnished to this man Doherty.
Mr. Soule: That is objected to as incompetent, irrelevant, and immaterial, and out of the order of proof.
The Court: Overruled.
Mr. Soule: Exception.
A. The amounts?
Q. Yes.
A. On June 23d, 19.10, $466.10, and July 2d, 1910,. $424.60.
( Q. Was that at the regular wholesale price of these goods at that time ?
Mr. Soule: Objected to as incompetent, irrelevant, and immaterial; the pleadings having set forth a specific agreed price.
The Court: Overruled.
Mr. Soule: Exception.
A. Yes, a wholesale price.
Q. How do you know there was $890.70 worth of goods furnished?
A. Because that was according to our boohs.
Q. You don’t know anything about it yourself, personally?
A. Oh, yes, I am in the office all the time.
Q. You see the books right along?
A. Yes, sir.
Q. And the knowledge which you have regarding the furnishing of these goods comes from your inspection of the books ?
A. Yes, sir, and from seeing the goods shipped out.
Q. You saw these goods shipped, did you?
A. Part of them, not all of them.
Q. What part did you see shipped — what part did you see shipped ?
A. Practically all of the first shipment.
Q. Where did you see it?
A. At our place of business in Minneapolis.
Q. Where is that ?
A. We were at 709 First avenue, South, then.
Q. Have you got a side track in there from the railway ?
A. No, sir.
Mr. Weeks: That is objected to as immaterial and improper cross-examination.
The Court: Overruled.
Mr. Soule: Head the question.
(The last question read to the witness.)
A. No.
By Mr. Soule:
Q. You testified that you only knew about the shipment of part of the goods. What portion of the first shipment did you know about ?
A. I don’t do all the shipping and packing, but I supervise the business, and know what is going on. I have men to work there.
Q. Well, what portion of that first shipment can you testify positively about ?
Mr. Weeks: Objected to as improper and cross-examination, already gone over and immaterial.
The Court: Overruled.
Mr. Weeks: Exception.
Q. Your duties are confined to the postage stamps and envelops, then ?
A. No, sir; my business — my duties are confined to the general supervision of .that business.
i Q. You are willing to testify positively to the shipment of any portion of the first invoice ?
A. Why, certainly, I testify that it was all shipped that we have charged him with.
Re-direct examination by Mr. Weeks:
Q. Mr. Collins, your company keep a set of books, do they ?
A. Yes, sir.
Q. Do they keep an invoice book ?
A. Yes.
Q. Do you know whether or not these books — these books or records— are correctly kept?
A. Yes, sir.
Q. Have you recently examined the books with reference to the aec'ount against J. P. Doherty, which you have testified to ?
A. Yes.
Q. And do you know that that amount is correct ?
A. Yes.
Q. Does that account show the items that you, have testified to here as charged to Doherty f
A. Yes.
Mr. Soule: Objected to, as not the best evidence.
The Court: Sustained.
Mi*. Weeks: Exception.
Q. When did you examine these books, Mr. Collins ?
A. Oh, I see the books right along, and I have examined them just before I come up here.
,Q. Where are those books now?-
A. In the safe in Minneapolis.
Q. Was it possible to have these books here?
A. We are using them right along, and keep them in the safe.
Mr. Soule: Objected to, as incompetent, irrelevant, and immaterial.
The Court: Overruled.
Mr. Soule: Exception.
A. Yes.
Q. Now, outside of your personal knowledge of this transaction, can you refresh your memory from an examination of the books, and state whether or not the statements you have given are correct, as to this account?
A. Yes.
Q. And are they?
A. Yes.
Mr. Soule: Objected to, as incompetent, irrelevant, and immaterial, and not the best evidence; no proper foundation laid.
The Court: Overruled.
Mr. Soule: Exception.
At the close of plaintiff’s case, the defendant moved for a dismissal of the action, on the ground that no evidence had been introduced, sufficient to sustain the allegations of the complaint, and sufficient to constitute a cause of action; that it had not been shown that the goods specified in the plaintiff’s complaint were sold or delivered to the defendant, Doherty. This motion was denied. At the close of the entire case, plaintiff moved for a directed verdict, which was granted. Judgment was entered pursuant to the verdict, and this appeal is taken from the judgment.
While several errors are alleged, still, the principal question presented on this appeal relates to the sufficiency of the evidence to sustain the verdict. As already stated, the only testimony offered by the plaintiff to- prove a delivery to the defendant, Doherty, of any goods, and the amount and value of such goods, consisted solely of the testimony of the witness, Collins. And while he testifies positively that the goods were all furnished, still, it is obvious, from all of his testimony, that his conclusions as to the amount and value of such goods are based upon the books of the plaintiff. It will be observed that the books were
In this state, the rules governing the admission in evidence of books
In Jones’s Commentaries on Evidence, in consideration of the question of the -degree of -credit to be given to books of account as evidence, it is said: “The courts have frequently expressed the opinion that evidence of this character is quite unsatisfactory, and that it should be subjected to close scrutiny. It has been said that books of account are received in evidence, only upon the presumption that no other proof exists. They are justly regarded as the weakest and most suspicious kind of evidence. The admission of them at all is a violation of one of the first principles of the law of evidence, which is, that a party shall not himself make evidence in his own favor. The practice of admitting such evidence is, however, universally adopted. It is said that it had its origin in a kind of 'moral necessity,’ and that 'such is the general course of business, that no proof could be furnished of the frequent small transactions between men, without resorting to the entries which they themselves have made in this form of accounts.’ But to make them evidence at all,- the books must have been kept in a manner so cautious as, in a great degree, to furnish a guaranty against abuse. . . . Books of account of either party, in which charges and entries have been originally made, are admissible in evidence, their credibility to be judged by the jury; but before such books are admis
“As we have stated, the question of admissibility or competency is for the determination of the court, upon the preliminary proof required by the statute or other law of the forum, while the degree of credit to be given is for the jury. If the book is not found to be a book of original entries, or if for other reasons it fails to confom to the mies regulating Us admission, the court will reject the evidence as incompetent. But if this is left in doubt, the book may be submitted to the jury with the instmction that it should be disregarded, if they find, against it. Book entries are not necessarily excluded because there may be alterations or erasures or mistakes, such as those in the name of the party. These are matters which may be explained to the satisfaction of the court. But if the entries show that they were all made at the same time, though relating to separate transactions, or if by reason of alterations or erasures or other cause they have a suspicious and fraudulent appearance, and are not explained, they should be rejected, although in some cases it has been held that books of this character should be submitted to the jury under proper instructions.” Jones. Ev. § 576. In this case neither the jury, nor the trial judge, had an opportunity to pass judgment upon the entries in plaintiff’s books, but the testimony of Collins as to what was shown thereby was received as conclusive evidence against the defendants.
“In the face of the fad that ShumwayJs account was kept by plaintiff in its books of account, we cannot understand on what possible theory counsel for the appellaml can properly contend that the court erred in
It is contended, however, that the books of account were used by Collins merely as memoranda to refresh his memory, and that his testimony was based upon personal knowledge, and not upon the information given in the books. A consideration of Collins’s testimony as a whole shows that this contention is not well founded. While Collins testified that he could refresh his recollection from an examination of the books, yet it is evident from his testimony that he never had any personal knowledge of the second shipment, or of more than a part of the first shipment; so that he had no personal recollection that was refreshed by the book entries, but the information he got from the books, as to the sale and delivery of certain goods at certain prices by plaintiff to Doherty, was rather in the nature of original information. He might have believed that the books had been correctly kept, and that goods of the amount disclosed by the books had been actually shipped; but his only knowledge as to the amount and value of goods so shipped was not dependent upon any former knowledge on his part, but was derived solely from the books. While it is true that there is a tendency to permit the use of memoranda under conditions where this formerly was not permissible, still, it is self-evident that, in order to permit a witness to refer to memoranda for the purpose of refreshing his recollection, it must appear that the witness, at some prior time, had personal knowledge of the facts to which the memoranda relate. A. witness cannot be permitted to consult memoranda for the purported purpose of refreshing the recollection, and obtain original knowledge therefrom, and thereafter relate the information thus obtained. The terms “refreshing memory” and “refreshing recollection” are self-explanatory, and directly negative the use of such memoranda, except for the purpose of “refreshing” the recollection of the witness, and recalling to his mind facts, which at one time were personally known to him, but which by reason of lapse of time have in a greater or lesser degree passed out of his mind. It seems obvious, however, that there can be no' refreshing of the recollection concerning matters of which the witness never had any actual personal knowledge. It also seems
In a discussion of this subject, it is said, in Elliott on Evidence, § 865: “It is not necessary that the memorandum referred to by the witness should he written by the witness himself, especially where, on .seeing it, he has a present recollection of the facts. It may have been written by another, since it is the recollection, and not the memorandum, which is evidence. It is essential, however, that, upon referring to it, his recollection should be so refreshed that he can spealc to iho facts from memory; that is, after referring to it he should be able to testify from his own recollection, or that he remembered having seen it when his memory as to the facts was still fresh, and that he remembers that when he saw it he hneiv the matters therein stated to be correct. For, if the witness is unable to recall the fact or the truth of the fact recorded, and the memorandum was made by another, his evidence, so far as it i$ established by the memorandum, is objectionable, as mere hearsay, it being his inference from what a third person has written.”
In the case of Putnam v. United States, 162 U. S. 687, 40 L. ed. 1118, 16 Sup. Ct. Rep. 923, the Supreme Court of the United States, in an opinion by the present Chief Justice White, said: “It is also clear that, where a memorandum or writing is presented to a witness for the purpose of refreshing his memory, it must either have been made by the witness or under his direction, or he must be connected with it in such a way as to make it competent for the purpose for which it is proposed to use it.”
It is elementary that the memory of a witness may be refreshed by calling his attention to a proper writing or memorandum. The rale is thus stated by Greenleaf (1 Greenl. Ev. 436) :
“Though a witness can testify only to such facts as are within his own knowledge and recollection, yet he is permitted to refresh and assist his memory by the use of a written instrument, memorandum, or entry in a book,, and may be compelled to do so if the writing is present in court. It does not seem to be necessary that the writing should have been made by the witness himself, nor that it should be an original writing, provided, after inspecting it, he can speak to the facts from his own recollection. So, also, where the witness recollects that he saw the paper while the facts were fresh in his memory, and remembers
The very essence, however, of the right to thus refresh the mernoryof the witness is that the matter used for that purpose be contemporaneous with the occurrences as to Avhich the witness is called upon to testify. Indeed, Ihe rule which allows a witness to refresh his memory by writings or memoranda is founded solely on the reason that the law presupposes that the matters, used for the purpose, were reduced to writing so shortly after the occurrence, when the facts were fresh in ihe mvnd of the witness, that he can with safety be allowed to recur to them in order to remove any weakening of memory on his part, which may have supervened from lapse of time.
In Maxwell v. Wilkinson (Parsons v. Wilkinson) 113 U. S. 656, 658, 28 L. ed. 1037, 1038, 5 Sup. Ct. Rep. 691, speaking through Mr. Justice Gray, the court said: “Memoranda are not competent evidence by reason of haA'ing been made in the regular course of business, unless contemporaneous with the transaction to which they relate. Nicholls v. Webb, 8 Wheat. 326, 337, 5 L. ed. 628, 630; Ætna Ins. Co. v. Weide, 9 Wall. 677, 19 L. ed. 810, and Insurance Cos. v. Weide, 11 Wall. 375, 20 L. ed. 894; Chaffee v. United States, 18 Wall. 516, 21 L. ed. 908. It is well settled that memoranda are inadmissible to refresh the memory of a witness, unless reduced to writing at or shortly after the-time of the transaction, and while it must have been fresh in his memory. The memorandum must have been 'presently committed to writing,’ Lord Holt in Sandwell v. Sandwell, Comb, 445, Holt, 295; 'while the occurrences mentioned in it were recent, and fresh in his-recollection,’ Lord Ellenborough in Burrough v. Martin, 2 Campb. 112; 'written contemporaneously with the transaction,’ Chief Justice Tindal in Steinkeller v. Newton, 9 Car. & P. 313; or 'contemporaneously or nearly so with the facts deposed to,’ Chief Justice Wilde (afterwards Lord Chancellor Truro) in Whitfield v. Aland, 2 Car. & K. 1015.”
In this case there is nothing to show when the book entries were-made, or by whom. There is no contention that they were made by Collins, or under his direction; or that Collins saw the book entries.
The burden of proof was upon the plaintiff, to prove, among other things, a sale and delivery by the plaintiff to Doherty of the goods set forth in the complaint, as well as the value thereof. 11 Enc. Ev. 576.
The only evidence offered to establish these facts, as already stated, was the testimony of Collins, set forth above. It wall be observed that even he did not testify to any personal knowledge of the second shipment — the one in issue. He says he saw practically all of the first shipment shipped out; but he made no claim that he saw any part of the second shipment either prepared or delivered for shipment. It is true he stated that he is positive that the goods were all shipped; but this was a mere conclusion, and his answers to specific questions show that he had no actual knowledge as to whether the second shipment was ever sent out. Even Collins did not testify that the goods were delivered to any particular common carrier, nor is any explanation made of the failure to produce the invoices or shipping bills for the shipments. The only evidence, therefore, of the delivery of such goods is the presumption which arises from the fact that they were charged to the defendant, Doherty, upon the plaintiff’s hooks. The only part of the testimony of Mr. Collins which in any manner tended to establish the amount and value of the goods claimed to have been shipped
