82 P. 869 | Wyo. | 1905
On November 21,1901,Charles Lewis,as plaintiff, brought’ an action in the District Court of Carbon County against the defendant in error, alleging that Richard England during his lifetime and on the 26th day of May, 1901, was indebted to the plaintiff in the sum of $1,821.95, for balance due on an account for goods sold and delivered, and for divers sums of money advanced to the said England by the plaintiff. The petition further alleges that Richard England died intestate on the 26th day of May, 1901, and thereafter the defendant in error was duly appointed administratrix of the said England’s estate; that on the 18th day of November,
The original plaintiff, Lewis, was a saloon keeper at Medicine Bow, and, being unable either to read or write, was obliged in the conduct of his business to intrust the keeping of his accounts to others. The evidence discloses that the accounts\>vere kept by his employes, by his wife, and in two instances by school teachers who lived at his house. It also appears that regular books of account, as the term is generally understood, were not kept by the plaintiff. At the saloon there was kept what was called a tablet consisting of plain sheets of paper. Each day there was entered on the tablet the charges that were made against various parties
It appears from the evidence that, in the regular course of business, it was customary for the persons' in charge of the ledger slips, under the direction of Lewis, to enter certain items of account originally on the ledger slips, and a comparison of the day slips and the ledger slips discloses the fact that there appear to be numerous items, principally credits, appearing upon the ledger slips which do not appear upon the day slips. This was explained by a number of
The account sued upon contains numerous items of cash advanced from time to time. It appears from the evidence that England was in the habit of borrowing from Lewis small amounts of money at various times. These cash items were sometimes entered upon the day slips, but frequently they were only entered upon the ledger slips, as the evidence discloses that the money was often procured by England at the house, either from Lewis or from Mrs. Lewis, who testified that her husband had directed her to give England money when he requested it. It was held by the commissioner that these cash items were not proper items of book account, and, therefore, the books could not be considered as competent evidence against the defendant as to such items. There are authorities which hold that there is not and never was a necessity for making books of account evidence of the payment or the lending of money (Inslee v. Prall’s Executor, 23 N. J. L., 463) ; but we think the great weight of modern authority is to the effect that where cash entries appear in the general course of accounts, as a part of the regular course of business transacted, that such entries should be admitted as competent evidence. As stated by Kilpatrick, Chief Jus
The only evidence offered on behalf of the defendant consisted of forty-eight checks from England to Lewis aggregating in amount about $3,000, and one promissory note from England to Lewis for $125. 'The note and checks in question were all dated within the time embraced in this account. No objection was interposed by plaintiff to their introduction. It is contended by the defendant that the note and checks create a presumption that the same were given in payment of the account sued upon, and the commissioner so held and seems to have balanced the account of the plaintiff by the note and checks. While it is true that a negotiable note or order drawn by a debtor and accepted by the creditor is presumed to be an extinguishment of the original debt, this presumption may be rebutted or explained, by agreement of the parties, or by proof of a usage, or of circumstances inconsistent therewith. (Varner v. Nobleborough, 11 Am. Dec., 48.) It was held in Missouri that in an action on a long account against an estate, the bank checks of decedent, to the order of plaintiff and endorsed by plaintiff and shown to be paid by the bank and
The judgment of the District Court is reversed, and the cause remanded for a new trial, in accordance with the views expressed in this opinion.