80 A.D. 115 | N.Y. App. Div. | 1903
Lead Opinion
The action is brought on an assigned claim of C. L, Rathborne & Co. for a balance alleged to have been due and owing to them from the defendant on account of certain stock transactions. The precise claim is that Rathborne & Co. were employed by the defendant to sell 900 shares of the capital stock of the Horthern Pacific Railway Company and 200 shares of the capital stock of the Chicago, Burlington and Quincy Railroad Company ; that they sold the stock and notified the defendant of such sale and requested that he deliver the stock to them to fulfill the terms of their sale; that he failed to do so "within a reasonable time and they were obliged to purchase stock in order to make the delivery to the purchaser ; that thereby the defendant became liable to them for their commissions and the difference between the amount for which they sold the stock and the amount they were obliged to pay for stock to fulfill the terms of sale aggregating the sum of $17,155.78, together with interest thereon from the 9th day of March, 1900, besides costs. The answer put in issue the material allegations of the complaint and set up a counterclaim for damages. The principal question presented on the appeal relates to an exception to the introduction of the account books of Rathborne & Co. as evidence of the sales of the stock by them and of the selling price, and of the purchase of the stock by them and of the purchase price. The bookkeeper of Rathborne & Co. testified that he sent notices by mail of the purchases and sales to the defendant and kept copies thereof; but it appeared that he did not mail the notices, but delivered them to a boy for that purpose and had no personal knowledge as to whether they were mailed or not. It might be inferred, however, from a letter which the defendant wrote Rathborne & Co. on
If it appeared that the broker who made the sales was unable to recollect the terms thereof, but had examined the entries made in the books at a time when he did recollect the figures so that he knew that the entries were correct and also that an examination of the books would not refresh his recollection so as to enable him to testify as to the figures, or if the telephone clerk had been sworn and testified that he transmitted the information to the bookkeeper correctly as he received it from the broker, then doubtless the books would have been competent evidence in connection with the other testimony to show the essential facts. (1 Greenl. Ev. [16th ed.] §§ 120a, 120b; Bank of Monroe v. Culver, 2 Hill, 531; Merrill v. Ithaca & O. R. R. Co., 16 Wend. 586; Clark v. National Shoe & Leather Bank, 32 App. Div. 323; affd., 164 N. Y. 498; State National Bank v. Weed, 39 App. Div. 604; Powell v. Murphy, 18 id. 25; Abele v. Falk, 28 id. 191; Bloomington Mining Co. v. Brooklyn Ice Co., 58 id. 66 ; affd., 171 N. Y. 673; Mayor v. Second Ave. R. R. Co., 102 id. 579.) The proof, however, was insufficient to make them admissible upon either of these grounds. The only other theory upon which they could in any view be admissible, as not obnoxious to the rule against hearsay evidence and evidence made by a party in his own behalf, is that they fell within the rule relating to the admission of shop books of services rendered or the sale and delivery of merchandise on credit. This rule has been somewhat extended, but no authority has been cited, and we find none in this State, extending its application to purchases from or sales to third parties by an agent in an action between him and his principal. It has been held not to apply to accounts of cash items or transactions even between the parties. (Dusenbury v. Hoadley, 49 N. Y. St. Repr. 560; Smith v. Rentz, 131 N. Y. 169.)
In Congdon & Aylesworth Co. v. Sheehan (11 App. Div. 456) it was held that this rule was not applicable to the account books of a corporation and that such books were not admissible as evidence of sales or deliveries. In Shipman v. Glynn (31 App. Div. 425,
It follows, therefore, that the judgment should be reversed and a new trial granted, with costs to appellant to abide the event.
Patterson and McLaughlin, JJ., concurred; Van Brunt, P. J., concurred in result; O’Brien, J., dissented.
Dissenting Opinion
In his answer the defendant admitted that he authorized the firm of C. L. Rathborne & Co. to sell short 900 shares of the Mor them Pacific Railway Company and 200 shares of Chicago, Burlington and Quincy Railroad Company stock and averred that thereafter
What remained in doubt were the prices at which the stocks were sold and the purchases made; and for the purpose of fixing such prices, the only evidence of which, it seems to me, the case was susceptible was introduced, namely, the account books of the firm consisting of the original entries made by the bookkeeper who had charge of making them and who testified that they were made at the time from information given him by the telephone boy in the office who received it from the telephone messenger in the exchange who, in turn, received the information from the exchange member of the firm. This testimony was corroborated by the plaintiff, who was the exchange member and gave the information. The two telephone boys were not called, but to do so would have been a useless formality, because from the nature of the transactions it would be impossible for them in the ordinary run of business to remember any particular transaction upon a particular day, and more especially would it be impossible for them to recall the prices at which the stocks were sold and subsequently purchased and which they sent and received over the telephone and gave to the bookkeeper. The telephone clerks were but part of a system or means of communication between the exchange member of the firm and the bookkeeper by which the former was enabled to communicate his transactions on the exchange to his office. It would be as idle to call them as it would be, with reference to the sending of a letter or telegram, to call the postman who regularly receives and delivers written messages, or the telegraph operator who regularly forwards and
I agree with Mr. Justice Laughlin that the rule that obtains with reference to introducing shopkeepers’ and tradesmen’s books in evidence has no application, and for the simple reason that such a rule, if applied to the books of account of large business enterprises, would, in nearly every instance, operate as a denial of justice.
The old common-law rule of evidence as to tradesmen’s books is no longer applicable to most of our modern methods of carrying on large and extensive business transactions. The position of the ancient shopkeeper, who himself sold and delivered his goods direct to the customer, and who made his own memoranda in books, was enlarged when, with the increase of business, he was obliged to employ a bookkeeper or a clerk, and to resort to entries in books of account made by the clerk or bookkeeper, because in no other way could he keep track of the growth in his business. With the introduction of department stores, embracing a number of different kinds of trade, and the formation of exchanges, with their indefinite extension of daily transactions, and of large corporations, whose business is conducted through numerous agencies, the old rule with respect to them can have no place, and it is useless longer to refer to it as in any sense applicable to such modern methods of doing business. It is inconceivable, with the growth in every other direction, that the law itself should not grow so as to meet the changed conditions, and it seems to me in such a case as this a waste of time to expend labor in the discussion of old rules which can have no possible bearing upon, or application to, the reasons or principles which should govern in determining the extent to which books of account, such as are here involved, may be resorted to as evidence.
It is, of course, necessary that a proper foundation for their introduction should be laid in order that their verity may be established, but when this is done by the most complete and satisfactory proof which from the nature of the business can be obtained, then the reason which permits the best evidence to be given should be held as applicable to such books of account, properly authenticated, as to
I dissent, therefore, from the conclusion of the majority of the court, thinking as I do that, where there was a virtual admission of the transactions having occurred, and all that was required from the books was a definite statement of the prices at which the stock was sold and bought, it was competent, because it was the best evidence of which the case was susceptible, to permit resort to the books for the purpose of ascertaining such prices.
Judgment reversed, new trial ordered, costs to appellant to abide event.