Potts v. McPeters

* Headnotes 1. Witnesses, 40 Cyc., p. 2452; 2. Payment, 30 Cyc., p. 1294. The suit is by appellant, Potts, to recover nine hundred fifty-two dollars from appellee, McPeters, as a balance due on a contract to build a house for appellee. Under the original written contract the house was to cost three thousand five hundred dollars, but, by agreement of the parties, certain changes were made and extra material and labor furnished, which increased the total cost to about six thousand dollars. The owner of the house, McPeters, paid the appellant five thousand three hundred thirty-six dollars and seventy cents on the contract after the house was finished, and seems to claim that this payment by a check to appellant was in full settlement for the construction of the building. The appellant denied the amount received was in full settlement, but that it was accepted as part payment, and that the balance of nine hundred fifty-two dollars remained unpaid, for which amount this suit was brought. At the trial of the case the appellant, Potts, introduced a witness by the name of Taylor, who testified that he was present and aided in the construction of the house, in that he did the carpenter work on the building and the extras that went into it, and that he and another man, Nichols, did the brick work on the building. Taylor seems to have been some kind of a foreman on the job as he kept a record of the carpenter work and the money he paid the hands who worked on the building. While on the witness stand, Taylor had a written itemized statement to which he referred and from which he *Page 106 refreshed his memory as to the numerous items of material and work that went into the building, and testified that a balance of about nine hundred fifty dollars was still due the appellant, Potts, for the extra work on the building. There was objection made by the appellee to the testimony of Taylor, on the ground that the itemized written statement was inaccurate and unreliable, and was inadmissible in evidence because, under the rule of the introduction of books in evidence, the correctness of the books must first be shown before they are admissible to prove accounts therein, and that, since Taylor had not himself made up the itemized statement from which he was testifying, but had dictated it to another person, his testimony in connection with the statement was inadmissible in the case. The court sustained the objection and excluded the testimony of Taylor; and the court, also, at the close of the evidence, granted a peremptory instruction to the jury in favor of defendant below, and from this action the appeal is prosecuted. A mere statement of the case makes it clear to us that the lower court was in error in granting the peremptory instruction in favor of the defendant, and in excluding the testimony of the witness Taylor offered by appellant, Potts. We do not understand that witness Taylor attempted to introduce any books in evidence, nor the written memoranda; he was merely refreshing his memory from the written itemized statement so that he could more clearly and definitely testify as to the facts which he knew of his own knowledge with reference to the extra work and material furnished on the building while he was present and assisting in the work. Therefore the rule which requires that the books, or written account, be shown to have been correctly kept before they are admissible in evidence, was not applicable, because the witness had the right to refresh his memory from a written memorandum, and it appears that was all that was done in *Page 107 this case. See New Orleans, Jackson Great Northern RailroadCo. v. John H. Echols et al., 54 Miss. 264. On the other question in the case; that is, whether or not the appellee settled in full with the appellant when he gave appellant the check for five thousand three hundred thirty-six dollars and seventy cents, we think this was a question of fact to be determined by the jury, for the reason the appellant testified the check was received only as part payment. The court should let the jury pass upon this testimony, if disputed, by appellee. The judgment of the lower court is reversed, and the cause remanded. Reversed and remanded.