Kemmerer v. Troxel

82 Pa. D. & C. 550, 1952 Pa. Dist. & Cnty. Dec. LEXIS 134
CourtPennsylvania Court of Common Pleas, Bucks County
DecidedApril 14, 1952
Docketno. 81
StatusPublished

This text of 82 Pa. D. & C. 550 (Kemmerer v. Troxel) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Bucks County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kemmerer v. Troxel, 82 Pa. D. & C. 550, 1952 Pa. Dist. & Cnty. Dec. LEXIS 134 (Pa. Super. Ct. 1952).

Opinion

Biester, J.,

This matter comes before us as the result of defendant’s motion for a new trial after the return of a verdict in favor of plaintiff.

Defendant assigns alleged errors on the part of the trial judge in connection with rulings as to the admission of certain evidence presented on behalf of plaintiff and the rejection of certain evidence which defendant attempted to introduce.

In order to comprehend the situation it is imperative that we set forth the nature of the case and the type of testimony upon which plaintiff relied.

Plaintiff, as of the period during which this action accruéd, was engaged in the butchering business with a place of business in the Village of Steinsburg, Bucks County. Defendant, during the same period, was a butcher with a place of business at Allentown, Lehigh County.

Plaintiff had begun doing business with defendant in about 1940. Defendant would periodically call at [552]*552the slaughter house of plaintiff and select the meat that he desired. Having made the selection, he would prepare two slips of paper upon which were recorded the kind and weight of the meat which defendant had purchased. One of these slips he kept for his own records and the other was left with plaintiff. Shortly thereafter plaintiff prepared a type of sales slip, or invoice, fixing the unit price of the meat and the total of the purchase price. These slips were retained by plaintiff in a book he kept for that purpose. Every 4, 5 or 6 weeks he would call upon defendant, at which time the parties compared their records, both as to the purchase price of the meat delivered and the credits to be given defendant as a result of payments made between settlements. All payments were made in the form of cash, enclosed in a sealed envelope and, in the ordinary course of business, procured by plaintiff upon his various interim visits to defendant’s store. These payments, if we accept plaintiff’s testimony, were applied to the then earliest unpaid item of the running account.

At the time suit was brought, plaintiff contended that the items delivered to defendant from April 5, 1950, to February 8, 1951, had not been paid. The total of such items was $4,641.50. This was the amount upon which suit was brought. The jury returned a verdict in favor of plaintiff for the full amount with interest.

Defendant admitted that plaintiff had sold and delivered to him merchandise during the same period and in the same amount, and for the same prices, but alleged that he was not indebted to plaintiff, but that, on the contrary, he had paid for each delivery regularly and periodically in the form of cash. The problem is, therefore, peculiarly one of fact, depending upon the credibility of the witnesses, and the court so charged.

[553]*553The focal point of defendant’s attack is the admission by the court of certain records kept by plaintiff. It was plaintiff’s testimony that prior to the checking, or settlement of the accounts, of the parties, plaintiff would enter the totals he obtained from the sales book on what was referred to as a statement book. It was this book which he would take with him when he visited defendant for the purpose of adjusting their accounts. At such times plaintiff would customarily deliver to defendant the original of the invoices plaintiff had prepared, setting forth the purchases made subsequent to the last settlement between the parties, retaining in his possession a copy thereof. Defendant kept his own separate records and the two would sit down and examine the records for the purpose of determining whether they were in accord. Since defendant admits the delivery of the meat as set forth in plaintiff’s exhibit attached to the complaint and does not quarrel with the prices charged therefor, the point at issue became the question as to whether plaintiff had allowed defendant credits for all of the amounts which he had paid.

When the parties met together for the purpose of adjusting their records and accounts, plaintiff would take with him the envelopes in which payments had been received since the last checking date, after having noted thereon the date of payment and extracted the cash. From the information contained on the envelope, the amount originally contained therein having been noted by defendant at the time of payment, from the invoices, from the statement book of plaintiff, and the records of defendant, the parties would proceed to adjust their differences, if any. Plaintiff, within the sight of defendant, would mark his statement book beside the item which represented the last bill which had been paid. This was done by writing the word “paid” beside such an item or, on occasion, [554]*554by means of a heavy line under the item, which plaintiff testified had the same effect. If the money received during the intervening period resulted in a balance due after allowing the credit, a notation of the balance was made to the right of the entry.

That this was a careless and unbusinesslike manner of conducting their financial transactions cannot be disputed. However, although we do not condone the method used by plaintiff in keeping his records, the system was evidently acceptable to defendant, who, except as to detail, agreed that this was the method employed. Not only did he accede to the method, but made payments in cash rather than by check, received no receipts, and kept no records of payments made.

It is the contention of defendant that, since this was a suit on an open book account, plaintiff’s case should have been established by self-sustaining books of original entry, both as to debits and credits; that the books admitted did not conform to the legal requirements of such books, and were, therefore, inadmissible. His attack is particularly directed to the inability of plaintiff to illustrate from his records the allowance for cash payments. He apparently takes the position that, since this was a suit on an open book account, the only method of proof which plaintiff might employ would be the introduction into evidence of the books themselves, and that such books must be self-sustaining, without regard to the method which obtained in the particular case. He, however, does not dispute the books of original entry, insofar as delivery and prices are concerned, but, on the contrary, agrees, in effect, that the goods for which defendant was charged and the unit prices thereof were in accord with the records of defendant.

It appears to the court that defendant has taken the same erroneous position as did defendant in the [555]*555case of Vondersmith v. Kloidt, 143 Pa. Superior Ct. 170, wherein the court said, at page 173:

“If defendant’s position were to be sustained, it would mean that when a book account is sued upon and items in it are disputed, a plaintiff would not be permitted to sustain those charges by any other proofs. It is apparent that the appellant confuses rules relating to pleadings with rules of evidence.”

The statement books were admitted into evidence as corroborating the testimony of plaintiff as to the method employed by the parties in connection with their adjustment of the records and allowance of payment. They were not admitted as books of original entry and the rules relating to the admission of such records have no application under the circumstances.

This is not a situation where a bookkeeper, or one unacquainted with the circumstances surrounding the transaction, offers self-sustaining records.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Commonwealth v. Grotzner
189 A. 495 (Superior Court of Pennsylvania, 1936)
Vondersmith v. Kloidt
17 A.2d 706 (Superior Court of Pennsylvania, 1940)
Funk v. Ely
45 Pa. 444 (Supreme Court of Pennsylvania, 1863)
Haughney v. Gannon
118 A. 427 (Supreme Court of Pennsylvania, 1922)
Darlington v. Taylor
3 Grant 195 (Supreme Court of Pennsylvania, 1855)

Cite This Page — Counsel Stack

Bluebook (online)
82 Pa. D. & C. 550, 1952 Pa. Dist. & Cnty. Dec. LEXIS 134, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kemmerer-v-troxel-pactcomplbucks-1952.