178 Pa. 78 | Pa. | 1896
Opinion by
The first question raised is on the proof of the claim of Dr. Miller for medical services to the decedent. The book pro•duced contained a large number of entries, beginning more than six years before the presentation of the claim. The auditor disallowed all that appeared to be barred by the statute of limitations, all lumping charges, a large number of items not self explanatory, and allowed the rest. The learned judge below sustained an exception by the claimant and allowed all the charges within six years, except those containing a lump sum for items not particularly specified. There were other questions raised both as to the claim itself and the mode of
How far books of original entry may be received as evidence of services of a professional character has not been settled in tins state. The earlier cases are full of expressions that such entries are evidence at all only from necessity, and that the custom to which such necessity gave rise extended only to goods sold and labor performed, and that it was exceptional and dangerous in character and would not be extended: Crouse v. Miller, 10 S. & R. 155; Curren v. Crawford, 4 S. & R. 3; Churchman v. Smith, 6 Wh. 146, 151. In Hale’s Exrs. v. Ard’s Exrs., 48 Pa. 22, the question as to attorney’s charges was left undecided, but it was said by Stkong, J., “None of the entries were such as the law admits to be evidence of indebtedness to the persons who made them. Books of original entries are evidence to prove a claim for goods sold and services rendered, if made in the regular course of.business, but as they aré evidence made by a party for himself, and very often incapable of being tested by other proof, they are to be guardedly received, and only to prove a sale and delivery, or labor for the alleged debtor for which the law implies a promise to pay.” How far, if at all, subsequent practice has enlarged'the strict limits thus laid down we do not need to consider, for reasons to be stated presently.
Nor is it necessary to enter upon a discussion of the self-sustaining character of the charges in dispute. It has been held that the charges need not be such as to be understood by the general public if they are intelligible to persons in-the business, but where they are not intelligible to the common understanding, it would seem to be necessary to support them by other evidence as to their meaning and character: Hough v. Doyle, 4 R. 291.
But there is an insuperable objection in the present case, that the book is not one of entries in the regular course of business; It is a separate book containing no charges except against the decedent. This is explained to have been at the decedent’s request, but the claimant was not a competent witness to prove' such request. No precedent has been shown for the admission of such a book, and the analogies are all against ik While the question does not seem to have arisen in this form yét all the au->
After a diligent search of the digests I have not found any precedent on this exact point, but two cases in New Jersey are instructive as showing the general judicial view in that state to be in accord with our own. In Wilson v. Wilson, 6 N. J. Law, 95, the disputed entries were for cash paid, advanced or lent, and some of them were written on one of the last leaves of the book with blank leaves between them and the other accounts. Ford, J., was of opinion that none of the cash entries was admissible, and Kirkpatrick, C. J., while not going so far, concurred in excluding the separate entries at the end of the book. In discussing the subject of book entries at some length, he said, “ A book of daily entries, containing accounts with different people touching matters in which a man is known to deal or be employed, and which according to the custom of the country are usually made matter of account, has been admitted as evidence for the jury under all the circumstances of the case, while a detached paper, which might have been made up for the occasion has been wholly rejected. . . .Now these last entries appear to me to be no part of the book, properly speaking, but to stand precisely in the situation of a detached paper, and to derive no credit at all from their being written within the cover of the book, seeing they are written upon pages wholly detached from the daily entries and accounts.” And in Swing v. Sparks, 7 N. J. Law, 59, the same learned judge mentioned among other objections to entries, that they were “all the account
We are of opinion that the regularity of the account as to its place in the ordinary books of the business is as necessary as its regularity in other respects, and that this book, failing in that requirement, must be rejected altogether.
The second question relates to the rejection of the appellant’s claim of set-off and credits. The decedent and Dr. Miller had very close and complicated business connections. The evidence shows real estate held in common, or in trust; many payments or advances of money on account of such real estate; transfer and satisfaction of judgments ; and very numerous checks passing from each of the parties to the other. Through this tangled mass the auditor has gone with great intelligence and exemplary industry, and we should not think of questioning or reviewing the results he arrived at, approved as they are by the court below, were it not entirely clear that the scope of his inquiries was too much restricted by considerations of jurisdiction to enable him to do full justice to the parties or terminate the litigation. He separated so far as was practicable the matters involving personal and real estate, and as to the latter, he-reported: “the matter of ascertaining the respective interests of the decedent and the claimant in said real estate, and the adjustment of the same, requires other proceedings, and to such proceedings the auditor is of opinion should be referred for adjudication and settlement all the checks, payments and other matters arising out of or pertaining to said real estate transactions.” The court reaching the same conclusion said, “ no final settlement is shown to have taken place between them; and on the contrary what evidence there is on the subject shows there was not. Claims and counterclaims, set-off and counter offsets were introduced ad infinitum, and the introduction of checks or papers showing receipt of money by one from the other was immediately followed by the counter productions of other liabilities to offset it. . . . It was shown that the decedent built houses on ground jointly purchased by claimant and decedent, and paid for the same with his own checks, and that afi the same time the claimant was transferring funds or making payments to the decedent. These matters have not been adjusted, and until they are the orphans’ court cannot en
This is a regrettable controversy. The decedent and the claimant stood not only in the double professional relations of counsel and physician to each other but in close business and personal association. For this reason probably their business matters were confined to their own knowledge, and conducted without regard to business formality or prudence, and the sudden death of Mr. Fulton left them so mixed that no tribunal now is likely to be able to say with confidence that it has reached a solution certainly correct. It is a case for amicable adjustment by reference to one or more arbitrators to take up the whole account in the same capable manner that the learned auditor took up the part that he thought within his jurisdiction and reach as .equitable a result as is now possible. Failing to agree on this however the parties must be left to their remedies on the matters as a whole.
Decree reversed, account to be restated in accordance with this opinion.
