Bucholz v. Ford

425 P.2d 746, 246 Or. 386, 1967 Ore. LEXIS 587

• Court: Oregon Supreme Court
• Decided: March 22, 1967
• Status: Published

Opinion

McALLISTER, J.

The plaintiff and defendant as partners operated an insurance agency from September, 1962, through September, 1964. Plaintiff thereafter brought this action, alleging that defendant had withdrawn from the partnership more money than he was entitled to. The court tried the case without a jury, found that defendant was overdrawn in the sum of $7,420.56, and entered judgment for plaintiff. Defendant appeals.

In proving his case plaintiff offered in evidence certain business records of the insurance companies with which the partnership did business. Defendant waived proof of the identification, mode of preparation, and regularity of these records under the Uniform Business Records as Evidence Act, but objected on the ground that they were not the best evidence. He contends that the best evidence would be the partnership records.

The amount earned by the partnership depended on the number of policies sold by it, the premiums charged therefor by the companies issuing the policies, and the commissions paid to the partnership on such premiums. The partnership apparently had no income other than its commissions on insurance sold. The partnership apparently did not keep adequate records, but if it had, its records would not be the only evidence admissible to prove the earnings of the agency. The records of the companies issuing the policies and paying the commissions to the agency would be competent, and perhaps more reliable, evidence of the income of the agency. We think the best evidence rule is not applicable to the facts of this case. Moore v. State Finance Co., 202 Or 265, 274, 274 P2d 559 (1954); 4 Wigmore, Evidence (3d ed 1940) §§ 1173-1174, 1177-1182; McCormick, Evidence (1954) 408-11, §§ 195-198.

The other assignments of error are not sufficient in an' action at law to present any questions for review by this court.

The judgment is affirmed.