Pan American Petroleum Corporation v. Mullack

167 So. 728, 232 Ala. 271, 1936 Ala. LEXIS 208

• Court: Supreme Court of Alabama
• Decided: February 20, 1936
• Docket: 1 Div. 913.
• Status: Published

Opinions

BROWN, Justice.

Action of assumpsit by appellant against appellees on a bond guaranteeing and insuring the plaintiff against loss in consequence of the infidelity of plaintiff’s employee, J. S. Brewton, to recover the sum of $987.72, coming into his hands as such employee, which he converted to his own use and for which he failed to account. Craft v. Standard Acc. Ins. Co., 220 Ala. 6, 123 So. 271; United States Fidelity & Guaranty Co. v. Benson Hardware Co., 222 Ala. 429, 132 So. 622.

The defendants pleaded the general issue and that the instrument sued on was without consideration. One of the defendants pleaded specially a conditional delivery of the obligation and a breach of the condition. On issue joined the plaintiff offered as evidence an affidavit and statement delivered to plaintiff’s auditor in which Brewton admitted his shortage to the amount claimed.

This admission by the employee as to past transactions was clearly hearsay as to defendants, and the court properly sustained the defendants’ objection thereto. United States Fidelity & Guaranty Co. v. Benson Hardware Co., 222 Ala. 429, 132 So. 622.

The original sales tickets and the “record” kept by Brewton were not brought within the rule of admissibility by showing that “the party making the entries must-have had personal knowledge of the transactions entered.” Loveman, Joseph & Loeb v. McQueen, 203 Ala. 280, 82 So. 530, 533; Denson v. Kirkpatrick Drilling Co., 225 Ala. 473, 144 So. 86.

The record appears free of errors.

Affirmed.

ANDERSON, C. J., and THOMAS and KNIGHT,. JJ., concur.