Nipper v. Jones

27 Mo. App. 538 | Mo. Ct. App. | 1887

Philips, P. J.

Plaintiff and one Lowery were partners in merchandise at Higgins ville, Missouri. Lowery retired from the firm, and assigned his interest in the accounts of the concern to plaintiff. Among the accounts was one against the defendant for the sum of $61.20, to recover which this action is brought by Nipper.

The defendant in his answer pleaded as a setoff an account against Nipper, individually, amounting to the sum of $12.50. He, also, by way of setoff, pleaded an account in his favor against Lowery, individually, -for the sum of fifty-nine dollars. ' On the trial the plaintiff was introduced as a witness, and seems, so far as we can gather from the meager abstract furnished by the appellant, to have been permitted to testify from the ledger-book, kept by the partnership concern, as to the correctness of the items of the account sued on; thus indirectly, against the objection of defendant, getting this account-book in evidence before the jury. The witness did not appear, from his testimony, to have any personal knowl•edge of the sales represented by the items sued for.

I. It is well settled in this state, that a party cannot introduce his book of entries for the purpose of establishing the correctness of his account. Hissrick v. McPherson, 20 Mo. 310; Cozens v. Barret, 23 Mo. 544; Anderson v. Volmer, 83 Mo. 407; Hensgen v. Mullally, 23 Mo. App. 614. The party might refresh his memory from his book entries made by him, and then testify as to the fact independent of the entries, if he can then do so from the recollection of the fact recalled. If he has made entries of the sales in his regular book accounts, after he has testified to the correctness of his account, the other side may demand his books for the purpose of cross-examination and contradiction.

II. The defendant, in order to sustain his setoff as to the account against Lowery in his individual character, offered to show that in settling, on a previous occasion, the partnership accounts against him, the partners had permitted him to set off claims which he held against the individual members; and, also, that they had been in the habit of doing so with other parties. This evidence was excluded by the court; and we-think properly. It is a well-settled rule that the debt of an individual member of the partnership cannot be-pleaded in setoff against the partnership debt. The defendant, no doubt, might show that at the time of creating the individual debt, it was agreed between him and the partners that the same would be paid in the way claimed by the defendant. But the effort here was to-prove the right to do so based upon a custom or usage. The proof offered fell far short of the requirement in establishing such custom or usage.

III. As to the setoff for the account of defendant against the plaintiff for $12.50, there seems to be no controversy, as plaintiff appeared willing to concede it.

The judgment of the circuit court is reversed, and the cause is remanded.

All concur.