| Wis. | Mar 10, 1896
The important q uestion in the case is whether the memorandum of the contract made by Mrs. Streich was admissible in evidence. It was first offered in evidence during the examination of-Mrs. Streich, and we are clearly of opinion that it was not then admissible. All that had then appeared in reference to it was that Mrs. Streich was her husband’s bookkeeper, and that she had written it down in the ledger at his direction, in presence of the parties. It is very clear that it was not admissible as a book of account under the statute, because it is neither a charge nor a credit nor an entry that properly belongs to an account. A memorandum otherwise incompetent cannot be made admissible by being written in a book of account.
After this offer was excluded, Mrs. Streich testified that she read it over in the presence of the parties, and then she was asked if she could tell what the contract was. An objection to this question was sustained, on the ground that
A different question was presented, however, when the entry was offered in connection with the evidence of the witness IVIathwig. This witness was entirely competent to testify as to anything that took place. He testified that he heard the contract made; that Mr. Streioh dictated it to his wife; and that she wrote it down at his direction, in presence of both parties; that she read it after she wrote it down; and that he stood where he could see it, though not-close enough to read it. He was then asked to look at the memorandum, and see if it ivas the memorandum which she made at the time; and an objection to this question was sustained, because it was not his memorandum and he did not read it. This was error. It does not follow that, because he did not read the memorandum, he could not identify it. He could certainly use the memorandum to refresh his recollection, though not made by himself, if he could identify it upon inspection and testify that he recollected it as the one made at the time of the transactions. Hill v. State, 17 Wis. 675" court="Wis." date_filed="1864-01-15" href="https://app.midpage.ai/document/hill-v-state-6599098?utm_source=webapp" opinion_id="6599098">17 Wis. 675. We think, also, in the present case, that, if he could so identify it, the memorandum would itself become substantive evidence. It appeared by Mathwig’s testimony that it was read over by Mrs. Streioh, in the presence of both parties, at the time, and without dissent, so far as ap
Another question is raised as to a ruling on testimony, on which we think the court was certainty right. The defendant, /Streich, was on the stand as a witness, and was asked if he ever notified Mr. Brown that the lumber was not in accordance with the contract. This was objected to, on the ground that Mr. Brown was deceased, and that the question called for a personal transaction with a deceased person. This objection was sustained practically on the ground, as stated by the court, that it called for a conversation with Mr. Brown. It' is now said that the notification mag have been by letter. If such was the method of notification, the question should have been so framed, especially after the ruling of the court, when it became apparent that the court had interpreted it as calling for a personal transaction.
By the Court.— Judgment reversed, and action remanded for a new trial.