Graham v. Dillon

May 14, 1909
Reporters:
,
Before:
Sherwin
Sherwin, J.

This action was brought to recover for services rendered by the plaintiff at different times between February, 1898, and December, 1905; the amount claimed being $5,545.45. There was a denial of indebtedness, an allegation of payment, and a counterclaim for money loaned to the plaintiff. The aggregate amount of money loaned and the payments made for plaintiff’s services, as alleged 15y the defendant, exceeds the amount claimed of him by the plaintiff. The defendant had been-having important litigation for some years before this suit ‍‌‌‌‌​‌​‌‌​‌‌​​​‌‌​​‌​​‌‌​​‌​‌​​​‌​​‌​​​‌‌​​​​​‌​‌‌​​‌‌​​‌​‌‌​‌‌‌​‌‌​​‌‌‌‌​‌‌‌‌​‌​‌‌​‌‌‌‌​‌​​​​​‌‍was brought, and the plaintiff had been his principal attorney in said litigation. On the -trial the defendant produced a book which he claimed was a book of original entries made by himself in the usual course of business, and the book contained entries showing payments and loans made to the plaintiff at different times and in different amounts; the payments covering the period of the plaintiff’s employment. Using this book to refresh his recol*84lection, the defendant testified to the payments and loans therein entered, and the book was then received in evidence. This ruling of the trial court .furnishes the foundation for the appellant’s most serious complaint. It is probably true that, under some of the early decisions of this court, the book alone would not he competent evidence of payments and loans. Veiths v. Hagge, 8 Iowa, 163, and cases following the rule therein announced. But even in that case and subsequent ones following it an exception was recognized in favor of books used in the business of banks ‍‌‌‌‌​‌​‌‌​‌‌​​​‌‌​​‌​​‌‌​​‌​‌​​​‌​​‌​​​‌‌​​​​​‌​‌‌​​‌‌​​‌​‌‌​‌‌‌​‌‌​​‌‌‌‌​‌‌‌‌​‌​‌‌​‌‌‌‌​‌​​​​​‌‍and others engaged in a similar business, and in the opinion of the writer, where business transactions between an attorney and his client extend over a period of years and involve charges for services and payments. made from time to time, a book showing such payments may well be brought within the exception noted, for the reason that attorneys and clients do not ordinarily pass receipts for payments made on account.

1. Evidence: books of entry: admissibility. But, whatever the rule should be in such cases, we need not now determine the question, because, the defendant having used the book to refresh his recollection, there was no error permitting it to gO to the jury. State v. Brady, 100 Iowa, 191; State McGruder, 125 Iowa, 741; Furlong & Meloy v. Ins. Co., 136 Iowa, 468; Bradley v. Chesebrough, 111 Iowa, 126; Callihan v. Washington Water Power Co., 27 Wash. 154 (67 Pac. 697, 56 L. R. A. 772, 91 Am. St. Rep. 829) and cases cited thereon; Curtis v. Bradley, 65 Conn. 99 (31 Atl. 591, 28 L. R. A. 143, 48 Am. St. Rep. 177). Under the rule of the ‍‌‌‌‌​‌​‌‌​‌‌​​​‌‌​​‌​​‌‌​​‌​‌​​​‌​​‌​​​‌‌​​​​​‌​‌‌​​‌‌​​‌​‌‌​‌‌‌​‌‌​​‌‌‌‌​‌‌‌‌​‌​‌‌​‌‌‌‌​‌​​​​​‌‍cases cited, if a witness can testify that at or about the time a memorandum or entry was made he knew its contents, and knew it to be true, his testimony and the memorandum are both competent evidence, although the witness can not testify to the facts as a matter of independent recollection, even after his memory has been refreshed.

*852. Admissionof evidence: harmless error. The value of the memorandum or entry as evidence is for the jury to determine as it must determine the weight to he given the testimony relating to the entry. The plain-tiff offered in evidence portions of testimony given by the defendant in an action involving the same issue brought by the present plaintiff against Dillon and others, and the court admitted it only on condition that the entire testimony on the subject be read. There was no prejudicial error in the ruling, and we, do not think the jury was misled or confused by hearing such testimony.

3. Attorney and client: compensation: evidence. Nor was there error ‍‌‌‌‌​‌​‌‌​‌‌​​​‌‌​​‌​​‌‌​​‌​‌​​​‌​​‌​​​‌‌​​​​​‌​‌‌​​‌‌​​‌​‌‌​‌‌‌​‌‌​​‌‌‌‌​‌‌‌‌​‌​‌‌​‌‌‌‌​‌​​​​​‌‍in allowing the defendant to show the amount actually received by him as receiver of the George Dee & Sons Co. The plaintiff had a charge for services rendered the defendant as such receiver, and it was proper to show the nature and extent of the business in connection with which the charge was made.

4. Same: instruction. The jury was instructéd that, while the testimony of attorneys as to the value of the plaintiff’s services was competent and should be given due weight, it was not conclusive, and that the jury might also consi¿er tbe question in the light of the knowledge and experience of its individual members. The instruction was in accord with the rule of this court. In other instructions the attention of the jury was directed to the charges for “term fees” and for consultations; and the jury was- told that it was for them to determine whether such charges were reasonable under all . of the circumstances shown. The rule we think ■ a correct one under the ‍‌‌‌‌​‌​‌‌​‌‌​​​‌‌​​‌​​‌‌​​‌​‌​​​‌​​‌​​​‌‌​​​​​‌​‌‌​​‌‌​​‌​‌‌​‌‌‌​‌‌​​‌‌‌‌​‌‌‌‌​‌​‌‌​‌‌‌‌​‌​​​​​‌‍record before us. The plaintiff presented a claim of $3,000 for one thousand five hundred, office consultations, and, in view of’ the amount of litigation he was attending’ to .for -the defendant, the charges therefor, and the fact that the consultations generally related to such business, we think no- fault-may justly-be found with the *86instructions criticised. We have given the record in this casé much careful attention, and reach the conclusion that no error appears for which there should be a reversal. The judgment is therefore affirmed.