161 N.W. 332 | S.D. | 1917
Action on time certificate of deposit alleged to' have been issued by defendant to plaintiffs intestate. Verdict w&s for plaintiff. From the judgment thereon and an order denying a new: trial, -defendant appeals..
: Respondent alleged the d’epos-it by his intestate, one William Ducheneaux, of $1,000 in 'appellant- bank, in July; 1911, and the issuance of -a certificate of ¡deposit therefor payable- to said William Ducheneaux or order; that the certificate .was. in the wrongful possession of appellant; that plaintiff as the -administrator of the estate of said William Ducheneaux was the lawful owner and-
It is the contention of respondent, and, in order to1 justify its' verdict, the jury must have found: That respondent’s' intestate did deposit such sum of money; that a certificate was issued payable to him; that, at the time of the 'deposit, a proper entry was made in appellant’s certificate of 'deposit register, which entry showed that the deposit was made by respondent’s intestate and certificate issued payable to him; that such entry was afterwards changed so as to show the certificate to have been issued payable to Jennie Duc'heneaux; that on July 7, 1913, this certificate, payable to William D'ucheneaux, was in appellant’s bank, marked paid, and with the name of Jennie Duoheneaux indorsed thereon; that appellant afterwards substituted another certificate in place of the above certificate, which substituted 'certificate was drawn payable to Jennie Duc'heneaux and, when brought into court, bore the indorsement of said Jennie D'ucheneaux.
It was the contention of appellant: That the deposit was made by respondent’s intestate for the benefit of his wife, Jennie Duoheneaux; that the record thereof in the bank books was properly made and never altered; that the certificate was drawn payable to' said wife; that it was such certificate that was in appellant bank on July 7, 1913; that the bank never issued a certificate for said deposit payable to respondent’s intestate; that the certificate it did issue was indorsed by the payee therein named, presented to the hank, and paid in full.
The evidence on behalf of respondent, upon his direct case tended to prove the following facts: Respondent and his attorney, one Burns, visited appellant bank on July 7, 1913, and, finding the cashier in charge, advised such cashier that respondent was the administrator of the .estate of William Duoheneaux, 'deceased; that they were looking for information regarding a certain certificate of deposit issued by the hank and delivered to deceased in July or August; and that a certificate had been issued to deceased shortly prior to his death. The cashier looked at his records, produced a certificate, and said it was the one “issued and delivered” to deceased1 shortly prior to his 'death. The number of the certificate was 2022. The attorney read the certificate and was able to substantially give its contents. A demand wa's made
“No. 2022. Certificate of Dep. dated July 17th, 1911, William Ducheneaux, $1000.00, payable to himself or order. [Indorsed] Jennie Ducheneaux. Paid to her.”
Appellant objected upon the ground that it “is incompetent because it * * * is- a * * * private memorandum, * * * hearsay, * * * not binding upon the defendant,
“Q. Could you testify as to the facts recited upon that memorandum or in relation to the facts that are recited on that memorandum independently of the memorandum by the memorandum refreshing your recollection and without having an independent recollection of it, or would you have to use the merno-rndum because you know it is a correct entry; A. I would have to rely on the memorandum. I have no independent recollection after using it. I know that tire contents of that memorandum were correct when made. It was made at the time when I saw the certificate and when Mr. Rowlee, the cashier, handed to me the certificate No. 2022 sued on in this case.” ■
The exhibit was again offered in evidence and the same objections entered thereto, which objections were - overruled and the exhibit received. Was the admission of such exhibit error? That this exhibit might tend to contradict Burns’ testimony given on the ¡direct case, and that its offer might appear to have -been prompted by a desire to conform respondent’s evidence to the custom testified to by the defense, were facts that might tend to create a suspicion in the minds ¡of the jurors that such exhibit was fictitious-; but such facts, while they might go- to- the probative value of the evidence, were no ground' for its rejection by the court.
The judgment and order appealed from are affirmed.