Sanders v. Mattick

420 S.W.2d 124, 1967 Ky. LEXIS 99
CourtCourt of Appeals of Kentucky
DecidedOctober 27, 1967
StatusPublished
Cited by2 cases

This text of 420 S.W.2d 124 (Sanders v. Mattick) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sanders v. Mattick, 420 S.W.2d 124, 1967 Ky. LEXIS 99 (Ky. Ct. App. 1967).

Opinion

STEINFELD, Judge.

Appellees are engaged in the lumber and building materials business. Appellant, Roy Sanders, is a building contractor. The lumber company claimed that Sanders owed it $22,048.70 for goods and supplies bought and delivered between May 24, 1958, and May 8, 1961. Various defenses to this claim were made. From a judgment in favor of the lumber company in the amount of $9,472.10 with interest the contractor appeals. We affirm.

The contractor admits that over a period of years he had made many purchases from the lumber company. Apparently he had depended upon Mr. Jerre C. Mattick, one of the owners of the lumber company, to keep the records of his indebtedness and Sanders kept no records. The original answer was a general denial. Next tendered was an amended answer and counterclaim in which Sanders charged that instead of being indebted to the lumber company the lumber company owed him $25,626.00 for merchandise returned, payments made but not credited and for bookkeeping errors. Later he filed a second amended answer and counterclaim admitting mistakes made in the first counterclaim. This time he demanded that he recover of the lumber company $20,603.39. In his third amended answer and counterclaim he charged that in addition to the other demands he had made, the lumber company owed him the additional sum of $5,805.00 for discounts on purchases he had made.

The trial court appointed a special commissioner for the purpose of hearing testimony, examining the multitude of entries of account and supporting memoranda and making a report to the court. Five volumes of testimony were taken. The special commissioner sought and obtained the aid of a certified public accountant in preparing his computation. Exceptions were filed to the commissioner’s report. The trial court sustained some of the exceptions and entered the judgment from which this appeal is taken.

It appears that the usual and customary bookkeeping methods of the lumber company included the preparation of three copies of each sales ticket. The customer took the yellow copy, the pink copy went into the ticket machine and the original which was a white ticket was used by Jerre C. Mattick in entering charges for sales on the loose leaf ledger sheets. These ledger sheets became the “book of original entry” as defined in Givens v. Pierson’s Adm’x, 167 Ky. 574, 181 S.W. 324 (1916). The ledger sheets were produced in evidence. 114 yellow and pink daily sales tickets were offered by Sanders to support his claim that a haphazard method was used by the lumber company in its bookkeeping procedures. The lumber company objected to their introduction. The testimony showed that these tickets were made in the usual course of business and promptly transmitted to Mattick for entry on the ledger sheets. Jungkind Photo Supply Co. v. J. W. Yates, Mo., 257 S.W. 820 (1924). We know of no reason why they should not have been admitted for the purpose offered.

Appellant says that “the sole question to be determined on this appeal is: Should appellant, Roy Sanders, be charged with the sum of $10,920.57 represented by the 114 irregular yellow and pink daily sales tickets?”. He contends that these 114 sales [126]*126tickets were “irregular” and that these made up a total of $10,920.57 of the charges. He says that the testimony of Jerre C. Mattick with respect to these sales tickets indicates a “feeble” effort to justify these charges.

He claims that these 114 daily sales tickets are branded “with every badge of fraud”, but he introduced no proof which indicated fraudulent acts. The appellant did not testify that he did not receive the merchandise. He did not produce any bookkeeping records to show what purchases he made. He demands that we conclude that the testimony is unworthy of belief, and argues that “a casual examination of all the evidence * * * would cause an open minded person to wonder if they ever existed prior to the introduction in evidence as completely as appellee Mattick had prepared them, in absolute contradiction of that firm’s method of bookkeeping.”

The trial tribunal is the finder of fact. Fleming v. Rife, Ky., 328 S.W.2d 151 (1959); Standard Farm Stores v. Dixon, Ky., 339 S.W.2d 440 (1960); CR 52.01. Here a special commissioner, aided by a certified public accountant, reported his conclusion and then the trial court made a decision on which the judgment was entered. Whether we are caused to wonder if this decision is correct is not the test. “The scope of our review is to determine whether there was sufficient competent evidence to support a judgment * * * ”. Creech v. Miniard, Ky., 408 S.W.2d 432 (1965). Burke v. Burke, Ky., 416 S.W.2d 724 (1967); Ferguson Contracting Co., Inc. v. Charles E. Story Construction Co., Ky., 417 S.W.2d 228 (decided June 30, 1967).

Mattick testified that all tickets from which he made the entries on the books were prepared in the normal course of business. In Johnson’s Adm’r v. Johnson, Ky., 244 S.W.2d 969 (1951) we said:

“The degree of credence to be given books and records of account depends upon their character and the circumstances. Often they are regarded with suspicion for they are usually of a self-serving nature. Martin v. Taylor’s Ex’x, 285 Ky. 128, 147 S.W.2d 70; Hopkins’ Ex’x v. Osborne, 278 Ky. 229, 128 S.W.2d 575, 142 A.L.R. 1403. But the books in the present case were regularly kept by clerks in an office doing a substantial business and there is no reason why they should not be accepted at face value and without suspicion. Johnson’s Adm’r v. Pigg, 242 Ky. 631, 47 S.W.2d 63; Whittaker v. Thornberry, 306 Ky. 830, 209 S.W.2d 498. That a modern looseleaf system of bookkeeping was used does not militate against competency, other conditions being present. Gus Datillo Fruit Co. v. Louisville & N.R.R. Co., 238 Ky. 322, 37 S.W.2d 856.”

The appellant points out that the deposition of fie two partners who operated the lumber business was taken for discovery (CR 26.01) and that each of them testified that the lumber company’s books and records with respect to the Sanders account were accurate, and that neither of them “even as much as hinted that any part of Sanders’ records were in the unworthy condition as they were when presented to the commissioner at the hearing.” Sanders claims that this constituted judicial admissions which prevent recovery. He cited Halbert v. Lange, Ky., 313 Ky. 648, 233 S.W.2d 278 (1950) and relies on the following:

“In 50 A.L.R.

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

Related

Vericoals, Inc. v. Revenue Cabinet
869 S.W.2d 49 (Court of Appeals of Kentucky, 1994)
Brown v. Commonwealth
440 S.W.2d 520 (Court of Appeals of Kentucky (pre-1976), 1969)

Cite This Page — Counsel Stack

Bluebook (online)
420 S.W.2d 124, 1967 Ky. LEXIS 99, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sanders-v-mattick-kyctapp-1967.