172 A. 26 | Pa. Super. Ct. | 1933
Argued October 23, 1933. The plaintiff recovered a judgment in the common pleas court against the defendant executrix for work and labor alleged to have been furnished by plaintiff to the defendant's testatrix; defendant, having appealed, complains of the refusal of her motions for a new trial and for judgment n.o.v.
The plaintiff sought to recover from the executrix the value of work and labor furnished by him to his aunt, Catherine McKain, during a period extending from February, 1926, to May, 1931. In support of his claim he offered evidence tending to show that he was a coal miner living with his wife and five children and did not have steady employment; that he had entered into a parol contract with his aunt, who owned a number of houses, to do the necessary carpenter work, painting, paper hanging, and other repairs thereon for which he was to be paid the fair value of the service; that he did some work on the properties; and that the aunt did not have the money necessary to pay him and told him to keep an account of his services. He was unable to show by others the dates and items or other specifications of the work performed *549 and, as his mouth was closed by the death of his aunt, depended on an alleged account in a book to show the work performed.
The book in question was a time book, which had been discarded after use by a coal company and found by the plaintiff, with blank pages on which plaintiff entered the time he worked in the mine. At another place in the book there were over three hundred items dated and in chronological order. These items, however, did not show a charge to any person. Mrs. McKain's name was not at the head of the account or mentioned in any other place. More than two-thirds of the items were in this style: "1926 Dec. 1, 6 hours 3.00." Other items were entered thus: "1926 June 8, Tarring roof 5 hours 2.50; August 4, Cleaning house, 314 Daly St. 8 hours 4.00." Is this such a book as is admissible in an action against the executrix of a decedent? We are all of the opinion that it is not and that it was reversible error to admit it.
"Books of original entries, verified by the oath of the party, and that the entries were made by him, have always been received in evidence in Pennsylvania, from necessity, as business is very often carried on by the principal, and many of our tradesmen do not keep clerks. In the country there would be a stagnation of all credit if this were not the case. It is superfluous to cite authorities to prove a course of proceeding, so notorious to all conversant in courts of justice": Curren v. Crawford, 4 S. R. 2, 4. The early cases are full of expressions that such evidence is received only from necessity and that the custom to which such necessity gave rise extended only to goods sold and labor performed; that it was exceptional and dangerous in character and would not be extended: Fulton's Estate,
As peculiarly pertinent to the present inquiry, it has been held that a book which does not charge or purport to charge the defendant is not admissible on behalf of the plaintiff. In Alexander v. Hoffman, 5 W. S. 382, the parties entered into a contract whereby Hoffman agreed to chop wood, rake leaves, and perform other service. A book offered for the purpose of making out the case was held not admissible "because the book does not purport to charge the defendant." In the case of Wall v. Dovey,
It is argued, however, that this case may be distinguished by reason of the fact that there was a special contract by which the plaintiff was to keep such an account. The difficulty with this suggestion is that *551
the account does not show, and there is no other competent proof tending to show, that this account was kept pursuant to such an agreement. The performance of a contract or the payment of money under a special agreement is not provable by books of account as the transaction is taken out of the usual course of business dealings. In Schnader v. Schnader,
This is a proper case for the granting of a new trial rather than the entry of a judgment n.o.v. The plaintiff relied upon the correctness of the ruling of the court admitting the book and did not furnish other competent evidence to make out a necessary element of his case, and should not be penalized for so doing. *552
The remaining argument of appellant is directed to the claim that the allegata and probata did not agree. While it is a serious question whether the court would have been justified in entering judgment for the defendant or excluding proofs on this ground (Sidwell v. Evans, 1 P. W. 383, 387; Brown v. Foster,
Judgment of the lower court is reversed with a venire facias de novo.