| Mo. Ct. App. | Jan 10, 1887
This action was commenced before a justice of the peace where defendant had judgment, which on a trial anew in the circuit court was annulled, and judgment given for plaintiffs, defendant appealing to this court.
The record before us notes the following occurrence at the trial in the circuit court:
“The plaintiffs then introduced, as substantive and •distinct evidence, the order book referred to by their several witnesses, and certain entries in such book were ■shown and read to the jury as distinct and substantive evidence. Such entries were of goods alleged to have been ordered and purchased by the defendant.”
It is of this being permitted over defendant’s objection that the chief complaint is made to us.
The question involved here, has been much discussed in.the English and American courts.
The cases of Price v. The Earl of Torrington (2 Salkeld, 285), and Doe v. Turford (3 B. & Ad. 898), are leading English cases on the subject. These cases are justified on the ground that the.entry was .a minute in writing made at the time when the fact it records took place, by a person since deceased, in the ordinary
In the case first mentioned the entry was by a clerk, in the latter it was by a principal, but in each case the parties making the entries were dead at the time of their introduction in evidence.
In the case before us the entry was made by a clerk ■alive at the time of its introduction, though preliminary proof was made that the entry was in the regular course of business and conteihporaneous with the sale.
. The doctrine announced by the English cases has found lodgment in nearly all the courts of the United ■States. Indeed, it has been carried much further here. It is said in Smith’s Legal Cases (Yol. 1, 503), that “it may be taken as settled law of all the states, that entries made in the usual course of business by the ijlaintiff:’s clerk, are admissible in evidence after his death, on proof of his hand-writing.” And so it is also held, as in Doe v. Turford (supra), that the entry may be by the principal as well as the clerk.
1 Greenleaf, section 118, says: “In the United States this principle has been carried further, and extended to entries made by the party himself in his own shop books.” He states it to be in harmony with the •common law, as the entry is only admitted where it is ■contemporaneous with the fact, and part of theres gestee. “'Being the act of the party himself, it is received with greater caution ; but still it may be seen and weighed by the jury.”
Does the fact that the party making the entry is yet ■alive render it inadmissible, when, if he were dead, it it would be legitimate testimony % Greenleaf states, without qualification, that the fact of the death of the party making the entry is not material. He .says there are two classes of admissible entries between which there is a clear distinction in regard to the principle on which they are received. One class consists of entries against the interest of the party making
But this court, under the constitutional amendment creating it, is bound by the latest utterance of 'the Supreme Court, and we should conform our decisions here to the views entertained by that court, as they may be fairly obtained from their reported adjudications. In Hissrick v. McPherson (20 Mo. 310" court="Mo." date_filed="1855-01-15" href="https://app.midpage.ai/document/hissrick-v-mcpherson-7999450?utm_source=webapp" opinion_id="7999450">20 Mo. 310), it was expressly held that a plaintiff’s book of original entries, kept by himself, is not admissible evidence. In that case the entries were made by the principal, as in Doe v. Turford
It follows, therefore, that the books should not have been received as independent substantive evidence of plaintiff’s demand, and the judgment will be reversed and the case remanded.