78 Wis. 360 | Wis. | 1890
We think the defendants were entitled to have an order requiring the plaintiff to produce his books
The action is to recover the balance due on an account involving various contracts and transactions between the plaintiff and the firm of McGeoch, Everingham & Go. Among other defenses set up and relied on in the answer is that the account was based upon certain unlawful dealings and transactions in which the plaintiff was engaged with that firm; that the account grew out of certain gambling contracts and transactions had between the plaintiff, as a broker, and the defendants, upon the board of trade in the city of Chicago. Mr. Miller, in his affidavit, in substance says and states the fact to be that an examination of the said plaintiff’s books of the various transactions and alleged contracts upon which the plaintiff has brought the suit will show conclusively to the satisfaction either of the court or jury that the alleged contracts of- purchase and sale were made without the purpose of receiving or delivering any property on them, but were made with the intent to settle by the receipt or payment of the differences, and that it is absolutely necessary that the plaintiff produce his books of account before the officer by whom his testimony is to be taken, so that copies of them can be made from the inception of the transactions to their final consummation, when they were settled by the payment or receipt of the differences; that it is essential not only to examine the items which enter into the accounts alleged to be outstanding, but also all the transactions previously had between the parties. The correctness of these statements is not questioned nor denied on the part of the plaintiff, and they must be assumed to be true. It is plain, should an examination of the books verify and sustain them, that such
It is said, on the other side, that it is hardly conceivable that there is anything in the plaintiff’s books which could be used to support the theory of the defense. But the contents of these books have not been placed before the court, and therefore any discussion as to their effect as evidence is out of place at this time. It is certainly conceivable that they may contain very important evidence to sustain the defense, and that they may strongly tend to show, that the transactions were illegal. Be this as it may, the defendants are entitled to have an inspection and an examination of the books of the plaintiff which have any relation to the matters involved in the issues, and we think the trial court should have ordered and required him to produce “ all his books of account,— the original blotter or option books, the option ledger, general ledger, and ring books,” and all other books, by whatever name called, which had any reference to the accounts under investigation, and which tended in any way to show the history and character of each sale and purchase.
It appears that the plaintiff did produce some of his books of account, but he refused to produce others. Those produced contain what he calls “ the original entries,” but it is an irresistible inference, from the plaintiff’s sworn statements made before the commissioners, that these entries had been transferred to the ledger or other books which had a connection with and tended to throw light upon the transactions or dealings which had been had between the parties. All these books and documents in the possession or under the control of the plaintiff which contained any evidence relating to the merits of the defense, and which would enable the defendants to prepare for the trial of the action, should be produced by him for examination. The defendants have the right to inspect them and examine the plaintiff in reference to the entries therein.
By the Court.— The order of the circuit court is reversed, and the cause is remanded for further proceedings in accordance with this opinion.