167 Ky. 574 | Ky. Ct. App. | 1916
Opinion op the Court by
Affirming.
The principal question in this case grows out of the alleged insufficiency of the petition and evidence to support a claim for $258.46 asserted by the administratrix of W. W. Pierson, against the appellant, T. K. Givens.
W. W. Pierson died in February, 1912, and thereafter his administratrix brought suit to recover a balance of $224.27 alleged to be due her intestate on an open account. The first item on the ledger account introduced as evidence reads, “March 1, 1909; balance transferred, $258.46, ’ ’ and this item is followed by other items of indebtedness running from March 4, 1909 to March, 1911, during which time the account was credited by various items, leaving due, according to the face of the account, the balance stated.
The petition as amended charged “that prior- to the first day of March, 1909, at the special instance and request of the defendant, Thomas. K. Givens, the said W. W. Pierson, Jr., sold and delivered to said defendant, various and sundry items and articles of merchandise, and said decedent in the usual course of business charged said items against the defendant on the books kept by.
In his answer the defendant, Givens, admitted that prior to March 1, 1909, he had purchased from Pierson sundry articles of merchandise and had received divers sums of money, but denied any knowledge or information sufficient to form a belief as to whether the decedent, in the usual course of business or at all, charged said items or any of them against him on books kept by decedent for the purpose. lie denied any knowledge or information as to whether any of the accounts kept by decedent prior to March 1, 1909, had been destroyed by fire, and denied that on that date there was a balance due him by the decedent of $258.46, or any other sum, and averred
It is argued by counsel for appellant that the petition as amended did not state a cause of action, but this contention is not well founded. The petition contained all the necessary averments to constitute a good cause of action in view of the averment that the books, accounts and memoranda showing the items that went to make up the amount alleged to be due on March 1,1909, had been, without the fault of the decedent, destroyed by fire.
On the trial of the case Givens was not offered as a witness, and the only witness introduced by the administratrix was Walter E. Mark, who was the office manager and bookkeeper for Pierson from 1895 until shortly before the death of Pierson in 1912. In reference to the matter of this $258.46, his testimony, in substance, was that Pierson conducted a large mercantile establishment employing a number of clerks, among them being Givens, who also was assistant manager. He said he was bookkeeper during the whole time that Givens’ account was being made, and that when Givens purchased goods on Credit in the store, an entry would be made of the purchase on a ticket such as was in general use in the store by the clerk making the sale, and that the ticket would be given to him the next day when an entry showing the transaction as it appeared on the ticket would be made by him on a bill book. That when Givens drew money from the store, as he often did, in payment or part payment of his salary, a ticket showing the amount that he. received would be made out by the cashier, and on the next day he would enter the transaction shown by the ticket on a cash book, and soon afterwards, in due course of business, the entries on the bill book and the cash book would be transferred by him to the account of Givens kept in the ledger, also made up by him. That this was‘the method pursued with all customers of the store during the time he was bookkeeper, and at the end of each month he would present Givens a statement of his account taken from the ledger, showing the items purchased and the amounts charged therefor, as well as the amount of cash received.
He further testified that the account of Givens on the ledger introduced on the trial was transferred to that ledger by him from another ledger also kept by him that
It will thus be seen that the ledger produced in court, and which showed in the first entry on the account of Givens that there had been transferred from another ledger a balance due by him of $258.46, was not a book of original entry. The first original entry, strictly speaking, was the entry made by the cashier who advanced the money or the clerk who sold the goods, and the next entry was the entry made by this bookkeeper on the day book and the cash book; and the next entries were those made by this bookkeeper in transferring the items from the bill book and the cash book to the ledger. So that the witness was only able to state from personal knowledge that the entries made on the bill book and cash book were correct copies of the entries made on the tickets, and that the entries on the bill book and cash book were correctly transferred to the ledger, and when the first ledger on which the account appeared was filled, it was correctly transferred from that ledger to the one introduced on the trial.
The question, therefore, is, should the book that was produced be treated, under the circumstances, as a book of original entry and entitled to the same weight as the bill book or cash book in which the entry was first made
There appears to be some conflict in the authorities on the question of the admissibility of book entries such as were relied on in the trial of this case to establish the indebtedness of Givens. Indeed, an investigation of the eases will disclose that some courts have made what seem to be refined and apparently unsubstantial distinctions in determining what are and what are not original entries in the sense that they may be received as substantive evidence.
The general rule, however, on the subject of the admissibility of book entries as substantive evidence of the fact that the transaction disclosed by the entry actually took place is usually stated by the authorities in substantially the same form. But in the practical application of the rule to the different facts and circumstances arising in the trial of cases, it has been found • necessary, in order that the rule should be of any value, to introduce' many exceptions.
In Greenleaf on Evidence, 15th Ed., Yol. 1, section 115, the general principles on which the admissibility of evidence of this character is allowable is thus stated:
“The entry, to be admissible, must be one which it was the person’s duty to make, or which belonged to the transaction as part thereof, or which was its usual and proper concomitant. It must speak only to that which it was his duty or business to do, and not to extraneous and foreign circumstances. The party making it must also have had competent knowledge of the fact, or it must have been part of his duty to have known it; there must have been no particular motive to enter that transaction falsely, more than any other; and the entry must have been made at or about the time of the transaction recorded. In such cases, the entry itself is admitted as original evidence, being, part of the res gestae. The gen
And also in section 117: “The admission of the party’s own shop-books,in proof of the delivery of goods therein charged, the entries having been made by his .clerk, stands upon the same principle which we are now considering. The books must have been kept for the purpose; and the entries must have been made contemporaneously with the delivery of the goods, and by the person whose duty it was, for the time being, to malm -them. In such cases the books are held admissible as evidence of the delivery of the goods therein charged, where the nature of the subject is such as not to render better evidence attainable.”
In Poor v. Robinson, 13 Bush, 290, this court said, in speaking of the competency and weight of book entries: “Such entries must be proved by the persons making them, unless they have died or absconded, and then the entries themselves must be proved when the books cannot be produced to the court, and it is not sufficient to prove, as was done in this case, the mere conclusions of the witnesses to their substance and effect. The contents of the books of third persons, and especially of bank books, which ha,ve been regularly kept, are, when properly proved, admitted as evidence as a matter of necessity. They have an established character as evidence, and may be used in case of the death or absconding of the person by whom they were kept. ’ ’
But it is at once apparent that these general statements of the rules of evidence applicable to book entries
' But we may say at the outset that the authorities are very generally agreed that the entries on tickets or stubs or slips of paper made out by clerks in stores in the regular course of business and at the time the transaction actually happens, are not the original entries in the meaning of the rule. .The original entry is the entry first made in the regular course of business in a permanent book, as, for example, in this case in the bill book or cash book. Entries first made on tickets or stubs or slips of paper by clerks or others are treated as mere memoranda, admissible as evidence for the purpose of refreshing the memory of the party who made them, if he is introduced as a witness, but not as independent or substantive evidence of the fact that the transaction took place: Chamberlayne on Evidence, vol. 4, sections 3085-3089; Elliott on Evidence, vol. 2, section 460.
There is also some authority to the effect that if entries are made on books such as bill books or cash books, or even ledgers from tickets or stnbs or slips of paper made out by clerks or cashiers at the time the transaction occurred, they are not admissible as substantive, independent evidence of the transaction unless the person 'making the entry on the bill book or cash book or ledger has some personal knowledge of the transaction, or the clerk or cashier who made out the original ticket or slip can testify as to the correctness of the entry. See cases cited in note to Smith v. Smith, 52 L. R. A., 545.
But there is much authority for the rule, which we think the better one, that where the entry is made in the usual and regular course of business on a permanent book, whether it be a day book or bill book or cash book or ledger, from memoranda or tickets or stubs or slips made out in the usnal way by clerks when the transaction occurred, these book entries are admissible as original and substantive evidence of the transaction whether the person who made the entries be living or dead at the time of the trial, and without reference to whether the original tickets or stubs or slips are available or the clerk
In Wigmore on Evidence, vol. 2, section 1530, the reasons for this enlargement of the rule are thus stated, following a discussion of the grounds on which they rest:
‘ ‘ The conclusion is, then, that where an entry is made by one person in the regular course of business, recording an oral or written report, made to him by one or more other persons in the regular course of business, of a transaction lying in the personal knowledge of the latter, there is no objection to receiving that entry under the present exception, provided the practical inconvenience of producing on the stand the numerous persons thus concerned would in the particular case outweigh the probable utility of doing so. Why should not this conclusion be accepted by the courts? Such entries are dealt with in that way in the most important undertakings of mercantile and. industrial life. They are the ultimate basis of calculation, investment, and general confidence in every business enterprise; nor does the practical impossibility of obtaining constantly and permanently the verification of every employe affect the trust that is given to such books. It would seem that expedients which the entire commercial world recognizes as safe could be sanctioned, and not discredited, by courts of justice. When it is a mere question of whether provisional confidence can be placed in a certain class of statements, there cannot profitably and sensibly be one rule for the business world and another for the court room. The merchant and the manufacturer must not be turned away remediless because methods in which the entire community places a just confidence are a little difficult to. reconcile with technical judicial scruples on the part of the same persons who as attorneys have already employed and relied upon the same methods. In short, courts must here cease to be pedantic and endeavor to be practical.”’
In Jones on Evidence, vol. 3, sec. 569, it is said: “The former strict idea of what constituted original entries has' been modified to fit the necessities of new business
Other authorities supporting these rules are: West Virginia Architects & Builders v. Stewart, 68 W. Va., 506, 36 L. R. A. (N. S.), 899; Diament v. Colloty, 66 N. J. L., 295.
Indeed, if entries made in the regular course of business on permanent books from data furnished in the form of tickets made, out at the time the transaction actually occurred, were not admissible as original entries, the doctrine of the admissibility of this character of evidence would be of little value to modem business establishments. In the.early history of mercantile affairs it is likely that entries showing sales of merchandise or other articles, or the advancement of money, if that was a part of the business, were made in some permanent book at the time the transaction occurred by the person who attended to it; and even now in many small business establishments this method is pursued and books so kept are of course, accurately speaking, books of original entry.
But this method of making entries in permanent books at the time the transaction actually happens is impossible in the conduct of large establishments where the usual and customary manner is for the clerk or other person who attends to the transaction with the customer to make an entry of it on' a ticket and on the next day,
If, therefore, the bill books or cash books, in which the account of Givens was first entered, were available or could have been introduced as evidence, there would be no difficulty in holding that the entries made in these books by the bookkeeper from the memoranda contained on the tickets made out by the clerks and cashiers would be independent substantive evidence of the fact that the transactions appearing on these books actually occurred. These books alone, in the absence of,any other evidence, would have made out a prima facie case for the plaintiff, although neither the tickets nor the parties who made them could be produced, and although the bookkeeper who made these entries on the books had no knowledge of the transaction except such as he gained from the tickets furnished to him at the time the book entries were made. But as the bill books and cash books were destroyed by fire before the trial, as well as the tickets, the remaining question is, was the ledger entry admissible ' as independent substantive evidence ?
In determining this question it is well to keep in mind as a controlling factor in the admissibility of this evidence that the bookkeeper introduced as a witness testified that he transferred to the ledger from which the balance on the ledger introduced was taken from the bill books and cash books the account of Givens in the regular
It is also true that this character of evidence may sometimes give to the merchant an advantage and make it difficult for the person charged to disprove the correctness of the entry. But the rule admitting this species of evidence has been so sufficiently tested by the experience of the years it has been in effect and so generally approved as to show that little if any injustice has been perpetrated under it. And if it was not admissible to prove accounts in this way, it would many times happen that the merchant would be unable to enforce the collection of a just claim, if the debtor was disposed to question all book entries that could not be otherwise proven on account of the absence or death of the persons who sold the articles or made the entries and the loss of books.
Having this view of the matter, the court should have directed a verdict for the administratrix, at the conclusion of the evidence, in place of submitting the matter to a jury.
Givens, in his answer, set up a counter-claim .in which he asserted that there was. due him several hundred dollars on account of unpaid salary. Complaint is made that the instructions of the court on the subject of this counter-claim did not fairly present the issue to the jury. We think, however, that the juxy could not have been misled to the prejudice of Givens by the instructions concerning his salary. The issue presented on this matter was a very simple one, and the evidence concerning it was so brief that the jury could not have failed to distinctly understand the dispute between the parties in respect to the salary; and in their verdict they found that Givens was not entitled to the salary claimed.
The judgment is affirmed.