Masonic Mutual Benefit Society v. Lackland

97 Mo. 137

• Court: Supreme Court of Missouri
• Decided: October 15, 1888
• Status: Published

Opinion

Sherwood, J.

Action on the bond of Luke, who was secretary of the association, Gerard B. Allen and, Edwin Harrison being his sureties. By way of avoidance of the bond, the defendant sureties pleaded that prior to its execution Luke had been a defaulter to the association, that this fact was well known to the executive committee and the officers of plaintiff ; but that such knowledge was not communicated to said defendants, and they were allowed to become bondsmen in ignorance of such material and damaging facts. Issue was joined on this plea, and the cause was referred to Alexander Martin to try all of the issues. After hearing the testimony he made his report and finding in favor of the plaintiff. This report was confirmed by the circuit court, resulting in a judgment in plaintiff’s favor, and the defendants have appealed to this court.

About the fact of the defalcation upon which defendants were sought to be held liable, there was no real contest. The evidence seems to fully sustain the finding of the referee, that prior to the giving of the bond in suit there was no misconduct on the part of the principal in the bond, or at least knowledge of it on the part of the association or its officers.

Objection was made to the accountant Spinney testifying as to his examination of the books and papers in the office of plaintiff. The books, packages' of vouchers, etc., were present at the examination and were used from time, co time by counsel on both sides. There is no rule in the law of evidence better settled than that, where the evidence is the result of voluminous facts, or of the inspection of many boo7cs and papers, the examination of which cannot conveniently take place in court, or where a witness has inspected the accounts of the partiés, though not allowed to give evidence of their particular contents, he will be allowed to speak of the general balance or result of such examination, and such statement is not hearsay. 1 Greenl. Ev. (14 Ed.) sec. 93, and cas. cit. The case of Ritchey v. Kinney, 46 Mo. 298, does not militate against this view.

Besides, the exhibit or tabulated statement, this being the result of the examination made by the accountant, and from which he testified as memoranda, when offered in evidence, was only objected to in a general way as incompetent, etc. Such an objection was worthless because not specific. Margrave v. Ausmuss, 51 Mo. 561.

Moreover, the witness - was asked by counsel for plaintiff the following questions :

“Q. Can you give the total amount collected according to these vouchers or memoranda and agents’ reports from May 15, 1879, to October 1, 1881 ?

“A. According to the vouchers, $354,464.99.

“ Q. What is the total amount collected as by the cash-book ?

“A. $348,634.60.

£< Q. What is the difference 1

££ A. $5,830.39.”

This is the amount found by the referee. These questions being asked and answered without objection from defendant’s counsel would have cured any supposed error, if error there had been, in the former part of Spinney’s examination.

Finding no error in the record, the judgment will be affirmed.

All concur.