20 Or. 202 | Or. | 1890
— Upon this state of facts the only inquiry is, did the trial court err in refusing to permit the entry on.the cash-book to be read to the jury as evidence? The issue was, whether or not the plaintiff had received from tho defendant the sum of $300 on the 29th day of May, 1886. It was in support of that issue to which his testimony was directed and the entry was offered as evidence. The record discloses that he had testified that the $300 was received by him from the defendant on that date, and that it was the only money he had ever borrowed or had from the defendant; that after testifying to these facts, he offered in evidence the page of his cash-book embracing the entry of the sum of money loaned, to show the date it bore was as he had alleged. Upon objection, the trial court, while excluding the entry as evidence, allowed it to be used for the purpose of refreshing the memory of the plaintiff to enable him to testify to the fact of his own knowledge. The contention for the plaintiff is, that the entry was admissible, but the law cited and relied upon to sustain it relates exclusively to the admission of the account books of merchants and handicraftsmen, in proof of the delivery of goods or the performance of work, therein charged. Briefly, it may be said, at
In this country the rule has been extended so as to admit the books when the entries therein have been made by the party himself; but there is not entire uniformity in regard to the admissibility of books of account in different jurisdictions, except that they all concur in requiring that the entries should be made in the regular course of business, and correctly kept, before they should be received in evidence. (1 Greenleaf on Ev. § 118; Wood’s Prac. Ev. §§ 139-145.) While, however, books of account kept by a party, or known by him to be correct, may be used by him as memoranda for the purpose of refreshing his memory, this question must be kept distinct from the question under what circumstances books of account, shown to have been correctly kept, are admissible as original evidence. In the case of shop books, or books of accounts, the entries made therein are admitted to prove the sale and delivery of the goods, or the payment of money, or the performance of work, as the case may be. In the case at bar, no such purpose was contemplated. The entry in the cash-book was not offered to prove the payment of the sum borrowed, for that had already been made, but to prove the date when the money was received, so as to ascertain whether there had not been two years’ interest paid more than the transaction authorized. 'As evidence -ipso facto, the entry was excluded, but as a memorandum made contemporaneous with the transaction, the witness was permitted to refresh his memory by an examination of it, and when his memory was thus refreshed, to testify to the fact of the date of his own knowledge. In Best on Evidence, note to section 224, it is said that a witness will be permitted to refresh his memory by an examination
Now, the record in this case discloses that the plaintiff was able to testify directly to the date when he borrowed the money from the defendant, of his own personal knowledge, clearly indicating that he did not need the aid of the
In Weaver v. Bromley, 65 Mich. 215, the court says: “The memorandum should not have been admitted in evidence. The witness had a clear recollection of the date upon which he received the notice, and did not desire or need the memorandum to refresh his recollection, and it was not used or offered for that purpose. It was introduced and received as original evidence in corroboration of his own statement. It was evidence made by himself in corroboration of himself. It was no more admissible than would have been his oral statement to the same effect, made on that day to a third party.” The reason for the exclusion of such entries, except when the witness is unable to recollect such facts, is thus stated in National Bank v. Madden, 114 N, Y. 285, 11 Am. St. Rep. 633: “ Tlie rule which renders such entries admissible rests upon the principle of necessity tor the reception of secondary evidence, and is not applicable where the witness has a distinct recollection of the essential facts to which they relate. The primary common-law proof is then furnished, and the necessity for evidence of the lesser degree does not arise. And this right, so qualified, to introduce such secondary evidence, is the better rule, in view of the opportunities which might otherwise exist, to superadd a written memorandum to the
The next objection is to the refusal of the trial court to grant a motion for judgment for the sum alleged, upon the ground that the answer set up no valid defense. But this is not wholly true, for the defense set up is valid as far as it goes, and shows that the plaintiff has not overpaid him the sum alleged, but only the sum of $3.05. It is true that a judgment non obstante veredicto is always upon the merits, and is never granted but in a very clear case, as where it is apparent to the court from the defendant’s own plea that he can have no merits. (2 Tidd’s Prac. 922.) It is also true that nothing short of an intentional confession will furnish a ground for such judgment, as it can never be rendered on the confession implied upon a pleading from not answering a traversable matter; but here the defendant, by his own answer, directly admits that he has been overpaid the sum of $3.05, and, as a consequence, that the plaintiff is entitled to recover that sum.
The judgment, therefore, must be reversed and thé causo remanded, with directions to enter judgment for the plaintiff for that amount.