| N.D. | May 27, 1914
Lead Opinion
This is one of the numerous cases in which a client has been directed by his attorney to bring his books of account with him when attending a trial as a witness on his own behalf, but has neglected and failed to comply with the request, and has then complained because his own negligence has made it impossible to prove his case. The neglect of a litigant to produce competent evidence which is in his possession does not justify a court in permitting the introduction of that which is secondary and incompetent; and if such court has inadvertently admitted the same under objection, he can later correct the error by excluding the evidence from the consideration of the jury. Turner v. American Security & T. Co. 213 U.S. 257" court="SCOTUS" date_filed="1909-04-05" href="https://app.midpage.ai/document/turner-v-american-security--trust-co-97012?utm_source=webapp" opinion_id="97012">213 U. S. 257, 53 L. ed. 788, 29 Sup. Ct. Rep. 420; Pennsylvania Co. v. Roy, 102 U.S. 451" court="SCOTUS" date_filed="1880-11-22" href="https://app.midpage.ai/document/pennsylvania-co-v-roy-90259?utm_source=webapp" opinion_id="90259">102 U. S. 451, 26 L. ed. 141; Ware v. Pearsons, 98 C.C.A. 364" court="8th Cir." date_filed="1909-10-11" href="https://app.midpage.ai/document/ware-v-pearsons-8772741?utm_source=webapp" opinion_id="8772741">98 C. C. A. 364, 173 Fed. 878; Fowles v. Rupert, 143 Mich. 246" court="Mich." date_filed="1906-03-05" href="https://app.midpage.ai/document/fowles-v-rupert-7943503?utm_source=webapp" opinion_id="7943503">143 Mich. 246, 106 N. W. 873; Bishop v. Chicago, M. & St. P. R. Co. 4 N.D. 536" court="N.D." date_filed="1895-02-07" href="https://app.midpage.ai/document/bishop-v-chicago-milwaukee--st-paul-ry-co-6734557?utm_source=webapp" opinion_id="6734557">4 N. D. 536, 62 N. W. 605; Mighell v. Dougherty, 86 Iowa, 480" court="Iowa" date_filed="1892-10-20" href="https://app.midpage.ai/document/mighell-v-dougherty-7105551?utm_source=webapp" opinion_id="7105551">86 Iowa, 480, 17 L.R.A. 755, 41 Am. St. Rep. 511, 53 N. W. 402; Yakima Valley Bank v. McAllister, 37 Wash. 566" court="Wash." date_filed="1905-03-23" href="https://app.midpage.ai/document/yakima-valley-bank-v-mcallister-4726466?utm_source=webapp" opinion_id="4726466">37 Wash. 566, 1 L.R.A.(N.S.) 1075, 107 Am. St. Rep. 823, 79 P. 1119" court="Wash." date_filed="1905-03-23" href="https://app.midpage.ai/document/yakima-valley-bank-v-mcallister-4726466?utm_source=webapp" opinion_id="4726466">79 Pac. 1119; Mallory v. Fitzgerald, 69 Neb. 312" court="Neb." date_filed="1903-06-03" href="https://app.midpage.ai/document/mallory-v-estate-of-fitzgerald-6655318?utm_source=webapp" opinion_id="6655318">69 Neb. 312, 95 N. W. 601; Townsend v. Greenwich Ins. Co. 86 A.D. 323" court="N.Y. App. Div." date_filed="1903-07-01" href="https://app.midpage.ai/document/townsend-v-greenwhich-insurance-5193809?utm_source=webapp" opinion_id="5193809">86 App. Div. 323, 83 N. Y. Supp. 909, affirmed in 178 N.Y. 634" court="NY" date_filed="1904-05-31" href="https://app.midpage.ai/document/townsend-v--greenwich-ins-co-of-the-city-of-new-york-3615701?utm_source=webapp" opinion_id="3615701">178 N. Y. 634, 71 N.E. 1140" court="NY" date_filed="1904-03-04" href="https://app.midpage.ai/document/in-re-the-accounting-of-thompson-3598119?utm_source=webapp" opinion_id="3598119">71 N. E. 1140; Megrue v. Lennox, 59 Ohio St. 479, 52 N. E. 1022.
The neglect of a litigant to produce competent evidence which is in
When an action is brought upon a balance claimed to be due upon a book account, and the books of account are in the possession of the plaintiff, a statement of the plaintiff that there is owing him on such account a certain sum of money does not constitute competent evidence. Great Western Life Assur. Co. v. Shumway, 25 N. D. 268, 141 N. W. 479.
These are practically the only questions to be decided upon this appeal. Plaintiff sued upon a book account. He failed to produce the books in evidence as a whole, or to have them proved by the bookkeeper who made the entries therein. He merely introduced some sheets from a loose leaf ledger which were the work of his bookkeeper, and a mem
It is quite clear that even though the evidence of the debits was admissible and the drafts were the best evidence, the testimony as to the credits was entirely hearsay. It seems to be clear that when one sues on .a balance claimed to be due on a book account, he does not establish that balance by merely proving the debit side of the account, and testify generally that a certain balance is due when he admits that there are numerous credits. It is true that some of the hearsay and incompetent evidence was admitted by the court, but it was admitted under objection, and the error could afterwards be corrected by excluding the evidence from the consideration of the jury, which was done in the case at bar. We may add that even upon the application of the plaintiff for an adjournment in order to allow him to get his books, which had been sent for, and which he expected upon a later train, there was no showing ■of the nature and materiality of the evidence.
The judgment of the District Court is affirmed.
Concurrence Opinion
(specially concurring). I concur in affirmance, but not in the fourth or fifth subdivisions of the syllabus and the discussion in the opinion thereunder. Whether such testimony constitutes competent proof depends upon the state of the record, and the rules announced are too general to be applicable to all cases.