Mercer v. Frank Hitch Lumber Co.

Hoke, J. Objection is made to the validity of the trial for that the court excluded the written memoranda of Howard, deceased, purport *52 ing to be a measurement of logs hauled from tbe land in controversy and left at defendant’s mill by tbe railroad’ company, tbe memoranda described and referred to by tbe witness Frank Hitcb. It does not clearly appear from tbe record tbe exact amount of timber tbat these memoranda would bave disclosed, but, in any event, we tbink tbey were properly excluded. If tbey included tbe same or a less quantity tban defendant’s books showed, tbey were without practical significance on tbe issue, for plaintiff admitted tbat such amount bad been fully accounted for and be bad deducted it from bis claim. On tbat ground tbe objection should be overruled, for tbe burden is on tbe defendant to establish reversible error. But if it be assumed tbat tbe memor-anda as made by Howard would show an amount greater tban tbat as contained in defendant’s statement, but less tban plaintiff claimed, we tbink bis Honor made correct ruling concerning them. It is well understood tbat written entries or memoranda, shown to bave been made by a third person in tbe regular course of business, when otherwise revelant, may be admitted in evidence on tbe trial of an issue and as substantive testimony, but in order'to their proper reception in this jurisdiction, and unless in strictness a part of tbe res gestee, it must be made to appear that tbe person making them, sometimes styled tbe entrant, is dead at tbe time of trial or unavailable as a witness; tbat the entries were made in the line of some duty or custom pursued in tbe course of entrant’s business; tbat tbey are contemporaneous with tbe act to be proved; and tbat tbe entrant bad knowledge of tbe relevant facts which tbey purport to contain. Ray v. Castle, 79 N. C., 580; Chaffee v U. S., 85 U. S., 516; N. J. Zinc Co. v. Lehigh Zinc Co., 59 N. J. Law, 189; Jones on Evidence (2d. Ed.), p. 401, sec. 319 (original sec. 323) ; 4 Chamberlain Modern Law of Evidence, secs. 2884-85-95 et seq. Applying tbe principles, it does not sufficiently appear at what time these memoranda were made by Howard, nor does it at all appear tbat be bad any knowledge of tbe facts which alone would give bis act of measurement significance, to wit, tbat tbe logs be measured .were those tbat came off tbe tract of land in controversy; nor does it appear that this was otherwise established. Tbe witness Hitch testifies tbat he himself bad no personal knowledge of tbe relevant facts, but “naturally supposed” tbat the amount as given in and shown by bis books was correct.” On tbe record and accompanying facts, as tbey now appear, all tbat Howard’s entries could possibly show was tbat, at some time not stated, be measured a certain lot of logs delivered by the railroad at .defendant’s mill and which some one bad reported to him bad come from a tract of land of plaintiff. Unless this was satisfactorily established, the pile of logs measured by Howard was not *53 a relevant fact. On the question, therefore, really in dispute between these parties, to wit, whether the amount of timber which defendant company had cut and removed from this particular tract of land of 75 acres exceeded the amount as shown on defendant’s books, the mem-oranda would have afforded no aid to the jury, and were properly excluded. In this aspect of the matter, the case is not unlike one of the authorities just cited, of Chaffee v. U. S. That was an action against distillers for selling whiskey on which no tax had been paid, and which was supposed to have been shipped from their distillery along the Miami Canal in Ohio, and as evidence tending to. show that the defendants had shipped whiskey in excess of the quantity they had paid taxes on, the Government offered the books of the collector of tolls in the canal and entries therein in the handwriting of deceased clerks, purporting to have been made from the reports of captains of boats as to their cargo, etc. In holding that the admission of these entries constituted reversible error, Field, J., in reference to them, said: “They were not competent evidence as declarations of the collectors, for the collectors had no personal knowledge of the matters stated; they derived all their information either from the bills of lading or verbal statements of the captains; nor were the books competent evidence as declarations of the captains, because it does not appear that the bills of lading were prepared by them or that they had personal knowledge of their correctness, or that their verbal statements, when the bills of lading were not produced, were founded upon personal knowledge; and, besides, many of the certificates were admitted without calling the caj>tains who signed them, and without proof of their death or inaccessibility.” It was objected, further, that on the-facts in evidence the court refused the defendant’s prayer for instruction in terms as follows: “If you find from the evidence the fact to be that the defendant prepared a statement of all the business between the defendant and the plaintiff, showing the balance of $35.75 by the defendant to the plaintiff, and offered payment of the amount of balance; that plaintiff excepted to the. statement, and stated to the defendant that it' was not enough; that some time afterwards the plaintiff accepted and cashed a check for the balance due, as shown in said statement; then the court instructs that the payment to and acceptance by the plaintiff was in law a settlement, and you will answer the issue as to indebtedness No.’ ” It is the well recognized principle here and elsewhere that when a dispute exists between two parties as to the amount of an account, and one sends another a cheek or makes a payment clearly purporting to be in full settlement of the claim, and the other knowingly accepts *54 it, this will amount to an adjustment, and further action thereon is precluded. It is a question, however, of the intent of the parties, as expressed in their acts and statements at the time, and unless, on the facts in evidence, this intent is so clear that there could be no disagreement about it among men of fair minds, the issue must be decided by the jury. Rosser v. Bynum, 168 N. C., 342; Aydlett v. Brown, 153 N. C., 334; Armstrong v. Lonon, 149 N. C., 435; Kerr v. Sanders, 122 N. C., 635, etc. In Rosser’s case, supra, the position as it prevails in this jurisdiction is stated as follows: “It is well recognized that when, in case of a disputed account between parties, a check is given and received clearly purporting to be in full, or when such a check is given and from the facts and attendant circumstances it clearly appears that it is to be received in full of all indebtedness of a given character or all indebtedness to date, the courts will allow to such a payment the effect contended for. The position is very well stated in Aydlett v. Brown, 153 N. C., 334, as follows: ‘That when a creditor receives and collects a check sent by his debtor on condition that it shall be in full for a disputed account, he may not thereafter repudiate the conditions annexed to the acceptance/ and is upheld and approved in numerous decisions of the Court,” (citing authorities). And further: “A proper consideration of this and other cases on the subject will disclose that such a settlement is referred to the principles of accord and satisfaction, and unless the language and the effect of it is clear and explicit it is usually a question of intent, to be determined by the jury.” Under the principle so stated, the judge could not have given the instruction as prayed for, which amounts to direction that the receipt of the check, under the conditions suggested, as a matter of law, would conclude the plaintiff. The statement showing that it was a balance due did not accompany the check when sent. It was remitted a “year or so after the statement had been exhibited.” There was nothing on the face of the check to show it was intended to be in full and, according to defendant’s own version of the matter, it was sent in a batch or with several other checks making payments for timber, arising from transactions entirely distinct. Plaintiff denies that any such statement ever was exhibited showing the check was for a balance due and including an account for the timber in controversy; but, taking defendant’s own version of it to be true, or such parts of it as appear in the prayer, the intent with which plaintiff received and cashed the check for $35.75 was a question of fact, and properly referred by his Honor to the jury. We find no error in the record, and the judgment for plaintiff is affirmed. No error.