42 So. 1031 | Ala. | 1906
This was an action by the appellants (plaintiffs) against appellee (defendant) on the common counts, to wit: (1) Open account; (2) account stated; (3) work and labor done; (4) merchandise, goods, etc., sold; (5) money paid for defendant; (G) money received by defendant for the use of plaintiffs. And the pleas were the general issue and payment. The matter for which plaintiffs claimed that defendant owed them the amount sued for was for the use of a “steam hoister,” which it is claimed did service for defendant under an agreement by which he -was to pay $10 per day.
A witness for plaintiffs, Edward Peppers, who' was a member of the plaintiff’s firm, testified that plaintiffs
As to the first objection, the testimony of Peppers shows that the entries were regularly made in a book kept for that purpose, on the reports which were made, in accordance with the Requirements of the contract; and, as to the second, the entries are corroborated by the testimony of Peppers and Steadman. As to the third exception; while it is true that the expression is found in the authorities that the person making the entry must have knowledge of the correctness of the item, yet it will be found that in those cases there was no proof by any one else of the correctness of the item, and it would seem, on reason, that if one party testifies that he knew of the correctness of the item and gave it correctly to the other; and the other testifies that he entered it as it was given to him, that that would amount to the same thing as if the party who made the entry should swear that he knew of the correctness of the item. So it is laid down that “entries made by a party from data furnished, or memoranda kept by an employe to assist his memory in making a report or return will be admissible, if supplemented by the oath of the party and the testimony of the servant making the memoranda or furnishing the information.” — 17 Cyc. 386; Miller v. Shay, 145 Mass. 162, 13 N. E. 468, 1 Am. St. Rep. 449;
It is next insisted that the book was properly exT eluded, because the entries were not made contemporaneously with the transaction. In the case of First National Bank of Talladega v. Chaffin, 118 Ala., pages 246, 260, 24 South. 80, referred to by counsel for appellee, the books offered in evidence were the ledgers of a deceased party, and there was no proof as to who kept the books, nor as to whether they were correct, or whether original entries or not, and the court very properly said that the books should have been excluded, because said books did not appear prima facie, nor were they shown by evidence to have been, original entries made contemporaneously with the sales and payments noted in them. The question as to how'near in point of time an entry may be made, so as to come within the rule .as to being contemporaneous, is not presented at all in that case. The case-of Dismukes & Patrick v. Tolson & Barrett, 67 Ala. 388, 389, went off entirely on the point that the witness could not testify to the correctness of the books, because it involved a transaction with a deceased party, and the remarks of the court were made to the point that under the facts in the case the books would have been admissible if the witness had been competent. In the case of Horton v. Miller, 84 Ala. 537, 540, 4 South. 370, the witness T. G. Miller made the entries, and J. P. was not put on the stand to prove the correctness of the items. The court properly held that the book was not admissible as to- those items. In the case of Stoudenmire v. Harper Brothers, 81 Ala. 242, 245, 1 South. 857, the memorandum sought to be introduced was not an original entry, nor even a copy
So there is nothing in our decisions contrary to the general principle laid down, to wit, that, while the entries must be made at or near the time of the transaction, yet no precise time is fixed by law when 'they should be made. The entry need not be made exactly at the time of the occurrence; but it is sufficient if it be made within a reasonable time. In this particular every case must be made to depend upon its own peculiar circumstances, having regard to the situation of the parties, the kind of business, the mode of conducting it, and the time and manner of making the entries. An entry once a week has been held to be sufficient. — Yearsley’s Appeal, 48 Pa. 531; note to Post v. Kenerson, 52 L. R. A. 583; McKelry on Evidence, pp. 251, 252, § 175. It must be admitted that the cases are in some confusion on this subject, but from au examination of them the above seems to be a reasonable deduction. There axe a number of cases where loose memoranda were first made, and then afterwards transferred to a permanent book, and the'general trend of decisions is that the loose memoranda, are not the entry, but mere helps to the party to remember, and the entry in the permanent
There is nothing in the suggestion that the entire book Avas offered in evidence,' and not only those entries relating to this matter, .as, in the first place, the book Avas offered only to prove these items, and there is no evidence that there Avas anything else in the book, and, in the next place, the only objection offered to it Avas that “it. had not been proved at all.” Nor is there any force in the suggestion that the report of Steadham Avas
The judgment of the court is reversed, and the cause remanded.