187 F. 713 | 7th Cir. | 1911
(after stating the facts as above).
At the close of the evidence, plaintiffs in error moved for a directed verdict in their favor. The evidence relating to the first breach and-the alleged rescission was not without conflict,' and the questions of fact on these adverse claims were therefore properly submissible to the jury. The assignment on the refusal to direct a verdict presents only the sufficiency of the evidence as to the amount of damages, concerning which objections for incompetenqy had been interposed.
• One of the books introduced was the “Steep and Kiln Record.” The elevator foreman weighed in and out the barley and malt. Each day he would give or send to the bookkeeper in the office slips of paper purporting to show the weights. From these slips the bookkeeper made the first permanent record. The elevator foreman was present ás a witness on another question, but he was not called upon to testify that he had weighed the barley and malt correctly, that he had correctly transcribed the weights upon the slips, and that he had given or sent all the slips to the office. The bookkeeper’s testimony that he had accurately entered all the slips he received, and that, so far as he knew they were correct, may be taken as true, and yet the unverified report of the foreman may have been false. Under the test of necessity (Mississippi River Logging Co. v. Robson, 69 Fed. 773, 16 C. C. A. 400, and Gardner v. Wilber, 75 Wis. 601, 44 N. W. 628, decided before section 4189 was adopted), the Kiln Record might not be admissible apart from the testimony of the elevator foreman. But section 4189 does not make the hearsay entry inadmissible even if better evidence, direct evidence, is available and practicable.
From the general books the expert accountant figured in his tabulation, and testified, that the amount expended for coál during the year was $16,336.94. But the question for the jury was how much coal had been consumed in malting the barley, not how much coal had been paid for during the year. There was no record of coal consumed as there was of barley malted. The expert testified, in substance, that he knew that the item “coal paid for” was in fact “coal consumed” because on direction .of the company’s officers he had consulted with the man in charge of coal and was informed that the amount on hand at the beginning of the year was practically the same as at the end, and that he had satisfied himself that the information was true because he: had examined the payments for coal for a period before and after the year in question, and had found nothing that caused him to doubt the coalman’s truthfulness. The books and tabulation therefrom being at most only evidence of “coal paid for,” the expert’s, conclusion as to the amount of “coal consumed” rested, not on' contemporaneous original entries, but on the unsworn oral statements of others.
Further error appears in the coal item. The expert, assuming that “coal paid for” equaled “coal consumed,” deducted certain car loads from the amount shown on the books because he said they were used-in drying wheat, not in malting barley. He knew they were so used because the company’s men had told him, and because he had examined the invoices of the cars in question, and had found thereon a memorandum “Coal used in drying wheat.” When, where, by whom, by what authority the memorandum was written was not shown. But it is urged the error was waived by the cross-examination. Counsel
Books containing accounts of money paid to third parties as “general expenses” and otherwise were admitted and made the basis of certain of the expert’s calculations. These accounts were admissible, if at all, not under section 4189, but under sections 4186 and 4187. Dohmen v. Blum’s Estate, 137 Wis. 560, 119 N. W. 349. Such hook accounts are inadmissible to prove “any item of money delivered at one time exceeding five dollars” or “money paid to third persons.” As most of the items exceeded $5 and all of them were payments to third persons, these accounts were inadmissible. The error was waived, it is claimed, because receipts or vouchers were in the courtroom and couns'4 for plaintiffs in error referred to some of them in cross-examining the expert. We do not find in the record any warrant for a claim that receipts for all the inadmissible hook items were in court. And counsel referred only to a few of those that were present.
Among the elements of the calculation was the value of real estate used in defendant in error’s malting business. The accountant on hearsay accepted some and rejected other items as they appeared in the “real estate account.” A basis for this separation, as to identity of parcels, was afterwards afforded by the testimony of the company's vice president. But he testified that the entries of values were made by the president in January, 1907, and “were comparative valuations with what real estate opposite this plant was being held for.” These were therefore not entries of real estate purchases, even if such transactions could be deemed a part of the due course of business in malting barley. They were not contemporaneous records of any act. At most, they were only a record of the opinion of value held by the president in January, 1907.
Without going further, it is evident that the accountant’s tabulation and explanatory testimony were so largely based on the incompetent declarations of others that they were inadmissible.
Questions relating to the charge and to the court’s action in allowing the amendment of the complaint are not likely to arise on a new trial.
The judgment is reversed, with the direction to grant a new trial, and to permit plaintiffs in error to amend their answer.
For.other oases see same topic & § number in Deo. & Am. Digs. 1907 to date, & Rep’r Indexes