Lewis v. England

82 P. 869, 14 Wyo. 128, 1905 Wyo. LEXIS 37

Opinion

Van Orsdel, Justice.

On November 21,1901,Charles Lewis,as plaintiff, brought’ an action in the District Court of Carbon County against the defendant in error, alleging that Richard England during his lifetime and on the 26th day of May, 1901, was indebted to the plaintiff in the sum of $1,821.95, for balance due on an account for goods sold and delivered, and for divers sums of money advanced to the said England by the plaintiff. The petition further alleges that Richard England died intestate on the 26th day of May, 1901, and thereafter the defendant in error was duly appointed administratrix of the said England’s estate; that on the 18th day of November, 1901, the account sued upon, verified as required by law, was presented to the defendant as administratrix and by her rejected and disallowed. The defendant answered admitting the allegations of the petition as to her appointment as administratrix and the presentation of the account, but denying all other allegations contained in the petition. On December 12, 1901, the court appointed John S. Williams; Esq., as special master commissioner to take the testimony in the case in writing, to hear the evidence, and to report the same to the court with his conclusions of law and fact. Under this order all the evidence was taken before the commissioner. On the 12th day of May, 1902, the plaintiff, Charles Lewis, died, and on December 2d following the case was revived in the name of the plaintiff in error, she having in the meantime been appointed administratrix of his estate. Before the commissioner made his report he resigned, and L. E. Armstrong, Esq., was on the 8th day of January, 1904, appointed in the place of said Williams with instructions to report his conclusions of law and fact to the court. Armstrong made his report on February 25, 1904, finding generally for the defendant and assigning his reasons for so finding. On the 14th day of March following the court approved and confirmed the report and findings of the commissioner in all respects, and entered judgment generally against the plaintiff and in favor of the defendant. From this judgment plaintiff prosecutes error to this court.

The original plaintiff, Lewis, was a saloon keeper at Medicine Bow, and, being unable either to read or write, was obliged in the conduct of his business to intrust the keeping of his accounts to others. The evidence discloses that the accounts\>vere kept by his employes, by his wife, and in two instances by school teachers who lived at his house. It also appears that regular books of account, as the term is generally understood, were not kept by the plaintiff. At the saloon there was kept what was called a tablet consisting of plain sheets of paper. Each day there was entered on the tablet the charges that were made against various parties during that day, the date being entered at the head of each sheet as the same was used. These entries were made principally by persons employed by Lewis attending bar and looking after matters generally connected with the conduct of his business. Each day the sheets containing the charges for the day’s business were filed away, and at frequent periods these day slips, as they were called, were taken to Lewis’ house and there transferred to other slips of paper called ledger slips. The ledger slips in question in this case contained the following heading: “Mr. R. England to Charles Lewis, debtor, Proprietor of the Elkhorn Saloon. Wines, Liquors and Cigars.” The slips were ruled in ledger form, the column to the left for the date, and the columns to the right for dollars and cents. The day slips contained charges made against different individuals in the order- in which sales were made in the regular course of business. These charges, on being transferred to the ledger slips, were entered against the individuals separately; in other words, the account of each individual was entered on the ledger slips under his name. The day slips and ledger slips were both offered in evidence by the plaintiff and objected to by the defendant. It was contended by counsel for defendant that the day slips and ledger slips had not been kept in such a manner, as books of account, as to entitle them to admission as evidence. The commissioner in his findings admitted the day slips, but refused to admit the ledger slips on the ground that they did not constitute books of original entry. The failure of the commissioner to admit the ledger slips is assigned as error.

It appears from the evidence that, in the regular course of business, it was customary for the persons' in charge of the ledger slips, under the direction of Lewis, to enter certain items of account originally on the ledger slips, and a comparison of the day slips and the ledger slips discloses the fact that there appear to be numerous items, principally credits, appearing upon the ledger slips which do not appear upon the day slips. This was explained by a number of witnesses, who at different times had charge of the accounts, as being the customary method employed by Lewis in the keeping of his accounts. The law prescribes no regular mode or method in which accounts must be kept in order to make them competent as'evidence. The question of competency must be determined by the appearance and character of the book, regard being had to the degree of education of the party, the nature of his business, the manner of his charges against other people, and all other surrounding circumstances “The material, form and construction of the book offered in evidence as the book of original entries are unimportant, provided such book be capable of perpetuating a record of events, and the entries are made in conformity with the general rules governing the admissibility of such entries. Thus a notched stick, a shingle, or scraps of paper, have been received as books.” (9 Am. & Eng. Ency. Law (2d Ed.), p. 917, and cases cited.) Certain essential requirements, however, must be observed in order to justify the reception of books of account as evidence. It must appear that they were the regular method of keeping accounts adopted by the party, containing the regular entries of his ■transactions in the usaul course of business, and made so near the time of the transactions as to establish the presumption that they were fairly and honestly kept. In Mississippi it was held: “The rule is that to authorize the introduction of books of account as evidence of facts entered, it must be shown that they have been fairly and honestly kept; that they are the books of the party engaged in the business to which they refer; that the entries were made in the usual course of business, at or about the time the facts entered transpired; that the entries are original and made by a party having knowledge of the facts entered, or that information thereof was communicated to the party by whom the entries were made by some person engaged in the business whose duty it was to transact the particular business and make report thereof for entry on the books, and such report and entry must be made at the time of the occurrence or before the facts can be supposed to have passed from his recollection.” (Chicago R. R. Co. v. Provine, 61 Miss., 288.) We are of the opinion that the evidence sufficiently discloses in this case that the books of account of Lewis were kept with sufficient regularity in the general course of the transaction of his business, and with all persons with whom he did business alike, to render them competent evidence in this case. The day slips living been admitted in evidence, the plaintiff has no complaint as to their admission, but it is contended that the ledger slips should likewise have been admitted. As above stated, the ledger slips contain many original entries. These entries were sometimes made at the direct request of Lewis or from scraps of paper containing á memorandum of the item or items to be charged. It is clear that the ledger slips, if competent evidence could only be so in so far as they contain accounts of original entry, or are explanatory of accounts appearing on the day slips. It appears that the amounts charged upon the day slips were indicated by figures, usually without decimal marks, or other specific indication as to whether the figures represented dollars or cents, though we think the various entries on the day slips, taken together and in connection with the subject of the charges, fairly show the meaning of the several figures. When entered upon the ledger slips the figures are clearly explained, and in no way contradictory of the day slips in that respect, hence for the purpose of explaining such figures in case of doubt, the ledger slips were admissible. (McGoldrick v. Traphagen, 88 N. Y., 334.) We are, therefore, of the opinion that the ledger slips were admissible for these purposes. In La Rue v. Rowland, 7 Barb., 107, the court said: “Books of account, to some extent, partake of the nature of documentary evidence, in respect to which it is the cardinal rule that part of an instrument cannot be received while part is withheld. The whole must be taken together. So, I think it is with regard to books of account. All the books containing entries relating to the account, when relied upon as furnishing evidence to sustain the account, should be produced.” (See also Greenleaf on Evidence (16th Ed.), Sec. 120.) In 9 Am. & Eng. Ency. Law (2d Ed.), p. 918, the following rule relating to books of original entry is announced: “The fact that the entries in books of account offered in evidence were, in the first instance, made on a slate or other material, contemporaneously with the transactions to which they relate, and were subsequently transcribed into the books in regular form, does not destroy the character of such books as books of original entry, where such minutes were made merely as memoranda to assist the memory until the transfer of the items to the books, and were not intended to be permanent.” These authorities seem to apply to the conditions, relative to the competency of the ledger slips, as disclosed by the evidence in this case. We are clearly of the opinion that it was error to refuse to admit the ledger slips as evidence for the purposes above stated.

The account sued upon contains numerous items of cash advanced from time to time. It appears from the evidence that England was in the habit of borrowing from Lewis small amounts of money at various times. These cash items were sometimes entered upon the day slips, but frequently they were only entered upon the ledger slips, as the evidence discloses that the money was often procured by England at the house, either from Lewis or from Mrs. Lewis, who testified that her husband had directed her to give England money when he requested it. It was held by the commissioner that these cash items were not proper items of book account, and, therefore, the books could not be considered as competent evidence against the defendant as to such items. There are authorities which hold that there is not and never was a necessity for making books of account evidence of the payment or the lending of money (Inslee v. Prall’s Executor, 23 N. J. L., 463) ; but we think the great weight of modern authority is to the effect that where cash entries appear in the general course of accounts, as a part of the regular course of business transacted, that such entries should be admitted as competent evidence. As stated by Kilpatrick, Chief Jus tice, in Wilson v. Wilson, 1 Halst., 99: “Upon principle I can see no reason why a book should be lawful evidence of one item and not of another; why it should be evidence of goods sold and delivered, and not of money paid or advanced. Why should there be witnesses called or receipts taken in the one case more than in the other? If necessity be pleaded for the one, may it not for the other also? For they are both transactions in the common course of business, equally necessary, and, I should think, equally frequent or nearly so.” (See also Wigmore on Evidence, Secs. 1548, 1549.) In Hay, Executor, v. Peterson, 6 Wyo., 418, this court said: “There are respectable courts that hold that a debtor’s books of account are not evidence to prove payments by him to his creditors, yet the liberal tendency of modern decisions is in the other direction.” The cash items contained in this account for money loaned by Lewis to England were improperly rejected by the commissioner.

The only evidence offered on behalf of the defendant consisted of forty-eight checks from England to Lewis aggregating in amount about $3,000, and one promissory note from England to Lewis for $125. 'The note and checks in question were all dated within the time embraced in this account. No objection was interposed by plaintiff to their introduction. It is contended by the defendant that the note and checks create a presumption that the same were given in payment of the account sued upon, and the commissioner so held and seems to have balanced the account of the plaintiff by the note and checks. While it is true that a negotiable note or order drawn by a debtor and accepted by the creditor is presumed to be an extinguishment of the original debt, this presumption may be rebutted or explained, by agreement of the parties, or by proof of a usage, or of circumstances inconsistent therewith. (Varner v. Nobleborough, 11 Am. Dec., 48.) It was held in Missouri that in an action on a long account against an estate, the bank checks of decedent, to the order of plaintiff and endorsed by plaintiff and shown to be paid by the bank and bearing the date within the period covered by the account, are admissible in evidence for what they are worth as tending to show payments on the account. But if the checks are related to other transactions, it is competent for the plaintiff to show that fact. (Jesse v. Davis, Admr., 34 Mo. App., 351.) It is disclosed by the evidence, that England employed large numbers of men from time to time, and transacted business that required the use of cash; and several witnesses, who were in the employ of Lewis during the period covered by this account, testified that it was customary for England to get Lewis to cash his checks for the purpose of paying off men in his employ and for other purposes. The checks introduced in evidence were drawn on banks in ■Carbon, Rawlins and Laramie, but none on a bank at Medicine Bow, where these transactions all occurred. This would lead to the inference that there was no bank at Medicine Bow, or nearer than Carbon, Rawlins or Laramie. We ■do not consider it an uncommon occurrence for men, needing ready money in their business, in the absence of a bank, to .get checks cashed at a neighboring place of business. In fact this is a very common custom in modern business transactions. Since Lewis could not write, these checks were endorsed in some instances by persons in his employ and sometimes by others at his request. The witness Walters, an ■employe of Lewis, and who had for a time charge of his accounts, identified twenty-one of the checks, aggregating ■'$1,082.40, as checks that he had endorsed at the request of Lewis. He testified positively that none of these checks, or any part of them, were given in payment of the debt which 'England owed Lewis, except as the same were entered on the ■account to the credit of England. He further explained that most of the checks were used for paying off the men who had 'been employed by England, it being the custom of England to get money from Lewis for this purpose, giving Lewis a check-•therefor. A check for $500 given by England July 7, 1899, which appears on the ledger slips as follows, “Credit $281.75, balance of check after paying J. Johnson $64, W. Zeal $94.25, Ed Walters $60.00,” was explained by the same witness to mean that after paying Johnson and Zeal, who were employes of England, the amounts specified, and the witness $60 for borrowed money, it left a balance of $281.75, which was credited to this account. A check for $400, dated November 25, 1897, is explained, we think, with sufficient clearness, to apply on a former account, except $3.60 which was credited upon this account. Charles La Taurette, another witness who had been in the employ of Lewis, and assisted him in keeping a portion of the accounts in controversy, identified five of these checks, aggregating $210, as checks that he had endorsed for Lewis. He also testified that England was in the habit of getting checks cashed by Lewis for the purpose of paying men in his employ, and that none of these checks were given in payment of indebtedness to-Lewis, except as they appear as credits upon his account. Mrs. Lewis identified seven of these checks by reason of the fact that she endorsed thereon the name of Charles Lewis, and testified that they were given in exchange for cash delivered to England, and did not constitute any part of the-account sued upon. Witnesses who were connected with the keeping of the accounts were introduced by the plaintiff, who identified all the checks excepting to the amount of $246.75, by reason of the fact that they had endorsed the-name of Charles Lewis thereon, and each of these witnesses except one explained that the checks were given by England in exchange for money at the time given to him by Lewis,, and that they constituted no' part of this account, except in so far as they had been credited on the account. There were-three checks aggregating $112.80 identified by Charles. Lewis, Jr., by reason of his having endorsed his father’s, name thereon, who testified that he did not know the purpose for which these checks were given. This would leave-checks aggregating $359.55 and the note for $125 unexplained, excepting by the general testimony of the witnesses, who kept the accounts of Lewis during this period, who-testified that the charges against England and the credits in his favor, as they appeared on said accounts, were correct..

While the large account of plaintiff should be scrutinized with the utmost caution, evidence that is competent should not be excluded, when no rule of law relating thereto has been violated. There is considerable evidence in this case, independent of the day and ledger slips, tending strongly to establish the honesty of plaintiff’s demand. A number of witnesses testified as to admissions made by England of his indebtedness to Lewis. The witness La Taurette testified that in his presence Lewis presented a statement of the account to England on the 17th day of February, 1901, or within about three months of the date of England’s death, and that England acknowledged that he owed the bill and that the same was correct. This statement was identified by the witness and introduced in evidence and shows a balance due from England to Lewis on that date of $1,625.95. We are of the opinion that the uncontradicted evidence of the acknowledgment of this account on the 17th day of February, 1901, is sufficient to remove any presumption that the note and checks dated prior to that time were given in payment of the account sued upon. Between the date of the rendering of this statement and the death of England eleven of the checks in question were given aggregating in amount $163.30. Six of these were included in the list explained by the witness Walters, and one in the list explained by Mrs. Lewis, leaving four checks aggregating $90.90 unexplained by any direct evidence. We think, however, that the evidence, viewed in its entirety, sufficiently shows that the checks were given in separate transactions, generally unconnected with this account, though it appears that a balance on some of them was credited to the account; and, except where such credit appears, we are of the opinion that the evidence is sufficient to remove any presumption that the checks were given in payment of plaintiff’s claim.

The judgment of the District Court is reversed, and the cause remanded for a new trial, in accordance with the views expressed in this opinion.

Potter, C. J., and Beard, J., concur.