Haley & Lang Co. v. Vecchio, File No. 3753

File No. 3753 | S.D. | Aug 7, 1915

■SMITH, J.

The only question presented on this appeal is the competency, as evidence, of certain card index records purporting to show an account of merchandise alleged to• have been sold by plaintiff to defendant. The plaintiff, located at the city of Sioux Falls, is engaged in a jobbing trade, making sales to customers through traveling salesmen, phone and mail orders, and direct dealing with customers at its place of business. 'Defendant operated .a store in Dake Preston, where he sold fruits, candies, and cigars. About the ist of June, 1913, he removed to Sioux Falls, leaving his son-in-law in charge of the store, with authority to order goods- from plaintiff. The son-in-law operated the store up- to -October 13, 1913. During that time defendant knew -plaintiff was shipping fruit and other goods to the store and, during the first m-onth, went to the wholesale house and 'himself ordered merchandise. These facts were admitted by defendant at the trial. The action was to recover a balance of $135.35 alleged- to- be due upon the account. Defendant interposed a general -denial and a plea of payment in full. By stipulation of counsel, the cause was sent to a referee, who heard the testimony and found that plaintiff was entitled to recover $135.35. The' court sustained the findings and-, ordered judgment which was duly entered. Appellant moved- for a new trial, which was denied.

At the trial before the referee, plaintiff offered in evidence its account in the form of a card record, showing debit and credit entries, and a balance in the sum claimed by plaintiff. The -o-nly question necessary to be considered is whether the record of account kept under the system adopted by plaintiff, and authenticated by the testimony of certain witnesses, was competent evidence. One Winterstien testified that he was credit man of plaintiff and had charge of the accounts for sales of merchandise, and passed on all orders; that -during the year 1913 plaintiff sold to defendant go-od-s consisting of fruits, candies, and cigars. Over objections he was permitted to- state that some of the goods were ordered from salesmen, some by -phone, some by mail, and others at plaintiff’s business place, by defendant himself; that the account was kept under his direction and supervision; that the system of doing business was, when, an order was received, an order sheet was made out, the goods selected and shipped from the order sheet, and a freight or express receipt made out for the transportation company's signature; that the freight and -express receipts, together with the order sheet, were then turned in to be checked by the bill clerk and billed, and, after being billed, were turned -over to the bookkeeper and posted from the order sheets -on to Exhibit A and B, the card account records; that such records constituted permanent and the only records of accounts; that he did not himself ship any of the goods in question ; that Exhibits A and B were made by the bookkeeper, though he did not see 'them made; that the items under the head of debits represent goods shipped by plaintiff to defendant upon separate orders; that the order sheets were turned over to the shipping clerk, who made the shipments from such sheets; that one Buell was plaintiff’s salesman from about the 1st of March, 1913, to January, 1914, after which Mr. Welsh acted as salesman; that some of the orders were taken by these traveling salesmen, some were mail orders, and some phone orders; that he himself had checked and compared the ledger accounts (Exhibits A and B) with the other records in plaintiff’s office, and with the order sheets for all items charged in the account; that Exhibits' 1 to 67 were in Buell’s and Welch’s handwriting, except certain order sheets which were in Welsh’s and witness’ handwriting; that these exhibits consist of order sheets for goods billed to- the defendant at Bake Preston, and that attached to each of the order sheets is the Corresponding shipping receipt of the express or railroad company; that these exhibits were turned in to the billing clerk and checked against the freight or express receipts and billed. Exhibits 1 to 67 were received in evidence over defendant’s objection. Buell testified that he was salesman for plaintiff company from the ist of June to the 1st of August, 1913, and that once or twice a. week defendant would come to plaintiff’s place of business and order goods which were entered on an order sheet, taken to the office of the company and O.. K.’d by the credit man, and turned over to the shipping department in the warehouse, SO' the goods could be forwarded by freight or express. One Caldwell ■testified that he was shipping clerk for-plaintiff during the period ■covered by the.account; that it was his duty to- look after making and billing out orders, and to see that they were taken out by the transportation company, and a receipt obtained, which was turned in to the office to be rechecked, and that he handled these receipts himself; that the shipping receipts attached to Exhibits 1 to' 67 were delivered when the orders were • shipped; and ’ that the goods represented on the orders and shipping bills were in fact shipped to the defendant.

Abbey Corn ess testified that she was employed by the plaintiff as bookkeeper, and had charge of the ledger cards and kept the accounts- shown by Exhibits A and B; that they were termed ledger .cards, and showed the account oif defendant; that they were in her own handwriting and were kept by her; that the orders were usually taken by traveling salesmen or by telephone, or direct from the firm, placed on order sheets which were handed to her the next morning to -post on the ledger cards; that Exhibits A and B were the only' records with which she had anything to do, and constituted the only ledger account kept; that plaintiff’s Exhibits A -and B showed the true state of the account between plaintiff and defendant.

Appellant conedes that this evidence, if admissible, would sustain the findings of the referee and the judgment of the trial court; his contention being that they were based on incompetent evidence received over proper objections. He contends that the record taken as a whole fails to disclose: (a) That the plaintiff kept a book of original entries; (b) that it affirmatively (Jiscloses that no such book was kept; (c) that there is- no substantive -evidence showing the sale and delivery of the goods; (d) that the evidence upon which the findings were based was hearsay. Appellant’s argument is that, under the card system of keeping accounts disclosed by the record, there .is a departure from the rule of hearsay evidence, -which finds no support from any court in this country or elsewhere, and will enable the merchant, if so inclined, to manufacture evidence -in his own behalf without any restraints against false s-wearing and perjury.

Jones ion Evidence (Civ. Cases, ad Ed.), in a discussion of books oif account as -evidence, says:

Section 596: “There is- general concurrence in the rule that the books offered should' be books of original entry. * * * In this particular every case must be made to' depend very much upon its, o-wn peculiar -circumstances, having regard to- the situation -of the parties, the kind of business, the mode of conducting it, and the time and manner -of making entries. Upon questions of this -sort much must be left to the discretion- -of the judge w-ho presides at the trial because having the books before him-, and understanding all the circumstances of the case, he is best able •to decide upon all questions involving the fairness and regularity of the entries sought to be -proved.”

Id. § 670: ‘No particular form of -books of accounts is generally -prescribed, although books are far more satisfactory when kept in the form of -daily entries of debits and credits in a day-book or journal. They may be kept in the form of a ledger, if this is the general mode in which the party keeps his books, provided the entries are original entries. * v . * But the book should be such a regular and usual account book as explains itself and as appears on its face to create a liability in- an account with the party against whom it is offered, and not to be a mere memorandum for some other purpose. Hence mere loose sheets of paper are not admissible, and a single entry does not constitute an account book. Charges may be so isolated and separated from others as to indicate that they were not made in the regular course of business, in which case they should be rejected. When books are proved to be the /-only- books’ of the party, they are books of original entry.”

Id. § 572: “It is another requisite that the entry should be made at or about the time of the transactions. * * * It is evident that much must depend upon the nature of the transaction and the regular mode of carrying on business.”

I'd- § 573: “In most jurisdictions it is necessary that testi-. xnony should be given authenticating the book of account and showing it to be the book of original entries kept for that purpose; also that the entries were true and correct, and contemporaneous with the transaction. * * * The -person making the entries should have personal knowledge of the facts recorded or his testimony should be supported- by that of some person who has such knowledge.”

In State v. Stephenson, 69 Kan. 405" court="Kan." date_filed="1904-05-07" href="https://app.midpage.ai/document/state-v-stephenson-7894795?utm_source=webapp" opinion_id="7894795">69 Kan. 405, 76 Pac. 905, 105 Am. St. Rep. 171, 2 Ann. Cas. 841, the court said:

“The evidence -discloses that modern wholesale houses have adopted modern methods of bookkeeping, 'in which the daybook and journal once in common use have no place in the system. The order from a customer comes in, and when approved by a credit man is passed to shipping and bill clerks, who -select "and assemble the. goods ordered from different departments of the house and check them out, and then the order, initialed or marked by those through whose hands it has passed, is 'handed to the bookkeeper, who formally enters the items in a book designated. a ‘ledger.’ This book is the first complete and permanent record of the charges and credits in the dealings had between the house and the customer. * * * .All that precedes the entries in the so-called ‘ledger’ are mere temporary memoranda which are turned in to the bookkeeper, who makes the first and only formal entries of the transactions between the parties. They are made about the times of the transactions and in the regular course of business. This book is the only permanent- record of the dealings of the parties from which the status of a customer’s account can be ascertained.”

In that case the accused was charged with making false representations as to the amount of his indebtedness, for the purpose of obtaining credit. The account books of several wholesale houses from which he had obtained credits- were received in evidence, first having been authenticated by the -oaths of the bookkeepers who made the entries. Such books of account were held competent evidence against the accused, even in a criminal case. Appellant contends that Exhibits i to 67 were improperly received in evidence.

In Wis. Steel Co. v. Md. Steel Co., 203 F. 403" court="7th Cir." date_filed="1913-01-07" href="https://app.midpage.ai/document/wisconsin-steel-co-v-maryland-steel-co-8787247?utm_source=webapp" opinion_id="8787247">203 Fed. 403, 121 C. C. A. 507, books of original entries (based on time cards turned in by workmen), in permanent form, were received in evidence, together with the time cards- themselves. The court says:

“Workmen’s time cards and other parts of the system (apart from the books) were properly admitted, in our judgment,- if for no other reason, because they tended to furnish the ‘circumstantial guaranty’ of the correctness -of the book entries. But we are of the opinion -that the books, time cards, and other parts- of the system were admissible under the Wisconsin statutes, as well as under the general law of evidence.” Feuchtwanger v. Manotowoc Malting Co., 187 F. 713" court="7th Cir." date_filed="1911-04-11" href="https://app.midpage.ai/document/feuchtwanger-v-manitowoc-malting-co-8779116?utm_source=webapp" opinion_id="8779116">187 Fed. 713, 109 C. C. A. 461; Wigmore, § 1730.

The evidence in the case at-bar shows that the ledger cards used by plaintiff, in its system of bookkeeping constitute the original, permanent, and only records of accounts with its customers. This card system is substantially the same as a loose-leaf ledger system of accounts. In Presley. Co. v. I. C. R. R. Co., 120 Minn. 295, 139 N. W. 609, the court says:

“Error is also assigned because the court received in evidence a sheet from plaintiff’s loose-leaf ledger, on- the ground that it is not shown to be an account book within the terms of R. L. 1905, § 4719. * * * ■ The ledger entry was, however, properly received. It was, in fact, an original entry. Mr. Graupman, plaintiff’s manager, testified in substance that this ledger is a record kept in plaintiff’s office; that the entries in it are made, at the time of the transactions, from temporary' sales slips which are not preserved; that this entry was made by a clerk in the office; that he did not know whose handwriting it was; that he saw it at the time it was made up; and that it was a true and correct statement of the account of the sale of this car. * * * The foundation was sufficient.”

Many of the numerous decisions upon this subject are under statutory provisions. We have no such statute in this state, and must rest our decision upon reasons which underlie the recognized rules and principles of evidence, as applied to modern business methods and conditions. The original rule has long since outgrown one of the limitations placed upon it by the earlier decisions and law writers, which was that it (Vosburgh v. Thayer, 12 Johns [N. Y.] 461) “was intended tor cases of small traders who kept no) clerks.”

The evidence offered and reeived was properly and sufficiently authenticated and was competent. The order and judgment of the trial court are affirmed.