203 F. 403 | 7th Cir. | 1913
(after stating the facts as above).
"‘Regular entries in due course of business are admitted as exceptions to the hearsay rule. Wigmore on Ev. e. 51. To bring entries within the exception, there must appear, according to the general law of evidence, a practical necessity for their introduction and a circumstantial guaranty that the transactions actually took place as recorded. The practical necessity is apparent in large mercantile and manufacturing businesses, where a transaction that has been participated in by numerous employes in the course of their employment is duly recorded as an original entry in permanent form by one who is charged with that duly in pursuance of an established system. Wigmore, § 1730.” Feuchtwanger v. Manitowoc Malting Co., 187 Fed. 713, 100 C. C. A. 461.1
Plaintiffs books, in which original entries (based on the cards) in permanent form were made in pursuance of a duty, were properly admitted in accordance with the foregoing rule. The 4,500 workmen coidd not keep plaintiff’s books of account. The limit of practicability was for them, under an orderly system, to furnish the data in the aggregate from which bookkeepers regularly employed for that purpose could make up the separate accounts.
Workmen’s time cards and other parts of the system (apart from the books) were properly admitted, in our judgment, if for no other reason, because, they tended to furnish the “circumstantial guaranty” of the correctness of the book entries.
But we, are of the opinion that the books, time cards, and other parts of the system were admissible under the Wisconsin statutes as well as under the general law of evidence. These statutes, indeed, impress us as intended for a statutory ratification of the general law above stated. The books and entries were identified in accordance with sections 4186 and 4187. And the time cards and other parts of the system were admissible, without direct proof of the handwriting of the workmen, under the last sentence of section 4189. These entries
“Tlie books, could- not come within both sections. Section 4189 renders competent only ‘entries in a book or other permanent.form other than those mentioned in sections 4186 and 4189b.’ ”
But the court had nothing before it involving the construction or application of the last sentence of section 4189, which, it seems to us, if it is to have any force whatever, must apply to scratch books or papers like salesmen’s slips and workmen’s cards, from the information on which the first entry is made on the permanent record.
Foremen at plaintiff’s plant, who had general duties of superintendence, received salaries which were included in burden or overhead expense. Certain subforemen were paid wages for time along with the workmen. Defendant insists that the wages of these subforemen should not have been included in the labor cost. Evidence showed that
Witnesses who explained plaintiff’s system of records were permitted to testify that there had never been “any controversy over any bills rendered under this system to customers heretofore.” We deem this testimony proper as incidental proof of the trustworthiness of the system.
One Fife, a cost man of the Mesta Company, was at plaintiff’s shop and checked up the work on defendant’s engines. Written reports of his checking were admitted in evidence. They were not admitted, however, as independent documents, but only in connection with his testimony on the subject. This, we think, was unobjectionable.
As a general rule a receipt of a stranger to the suit is not admissible against a party as proof of the fact of payment. But there are exceptions. One is the receipt of a person who is pointed out in the contract of the party against whom the receipt is offered. 23 Am. & Eng. Ency. of Law (2d Ed.) 981, 982, and cases cited.
In the contract sued upon in this case it was agreed that the castings should be delivered f. o. b. cars at plaintiff’s station. This meant that, if the shipper did not pay the freight in advance (as quite generally the shipper does not), the consignee should pay it and charge it to the shipper’s account. So the contract, in view of defendant’s failure to prepay the freight, designated the railroad companies as parties to whom plaintiff should make payments on defendant’s account.
On review of the entire record, we find not only that no errors were committed in the trial, but that any other verdict and judgment would have been a miscarriage of justice.
The judgment is affirmed.
See Firemen's Ins. Co. v. Seaboard A. L. Co., 138 N. C. 42, 50 S. E. 452, 107 Am. St. Rep. 517; Donovan v. R. R. Co., 158 Mass. 450, 33 N. E. 583; State v. Stephenson, 69 Kan. 405, 76 Pac. 905, 105 Am. St. Rep. 171, 2 Ann. Cas. 841; Louisville & N. R. Co. v. Daniel, 122 Ky. 256, 91 S. W. 691, 3 L. R. A. (N. S.) 1190; Diament v. Colloty, 66 N. J. Law, 295, 49 Atl. 445, 808; Cockran v. Rutter, 76 N. J. Law, 375, 69 Atl. 954; Corkran v. Taylor, 77 N. J. Law, 195, 71 Atl. 124; Madunkeunk Co. v. Allen Co., 102 Me. 257, 66 Atl. 537; Wells Whip Co. v. Tanner’s M. F. Ins. Co., 209 Pa. 488, 58 Atl. 894; Pelican Lumber Co. v. Johnson, 44 Tex. Civ. App. 6, 98 S. W. 207; Pittsburgh, etc., R. Co. v. Chicago, 242 Ill. 178, 89 N. E. 1022, 134 Am. St. Rep. 316; Reyburn v. Queen City Co., 171 Fed. 609, 96 C. C. A. 373; Cooke v. People, 231 Ill. 9, 82 N. E. 863; Richardson Co. v. Seymour, 235 Ill. 319, 85 N. E. 496; Mahoney v. Hartford Ins. Co., 82 Conn. 280, 73 Atl. 766; Hitchner Co. v. Penn. R. Co. (C. C.) 158 Fed. 1011; Ryan Car Co. v. Gardner, 154 Ill. App. 565. And compare: Dohmen v. Blum’s Estate, 137 Wis. 560, 119 N. W. 349; Stickle v. Otto, 86 Ill. 161; Chicago Lumbering Co. v. Hewitt, 64 Fed. 314, 12 C. C. A. 129; Rumsey v. N. Y. & N. J. Tel. Co., 49 N. J. Law, 322, 8 Atl. 290; San Francisco Teaming Co. v. Gray, 11 Cal. App. 314, 104 Pac. 999; Carlton v. Carey, 83 Minn. 232, 86 N. W. 85; Gould v. Hartley, 187 Mass. 561, 73 N. E. 656; Swan v. Thurman, 112 Mich. 416, 70 N. W. 1023; Kent v. Garvin, 1 Gray (Mass.) 148; Putnam v. Grant, 101 Me. 240, 63 Atl. 816; 1 Greenleaf on Evidence, § 118 (Note); Corr v. Sellers, 100 Pa. 169, 45 Am. Rep. 370.