Spies v. Stang

Christianson, J. During the years 1918, 1919, and 1920, the Havelock Equity Exchange owned and operated an elevator at Have-lock, North Dakota, wherein it carried on the business of buying and selling grain, seed, twine, fuel, gasoline, etc. During this time the defendant Stang was a customer of the Havelock Equity Exchange and from time to time purchased from it on credit various articles of merchandise of the kind handled by the Exchange and from time to time made payment on his account. On January 23, 1922, the Havelock Equity Exchange was adjudged a bankrupt in the H. S. District Court *676 for the district of North Dakota. On June 10, 1922, one Van Hook was appointed trustee in said bankruptcy proceeding and he thereafter duly qualified and entered upon his duties as trustee. On May 13, 1924 the said trustee in bankruptcy duly sold and assigned to the plaintiff, Spies, certain accounts and bills receivable of the Havelock Equity Exchange. Among the accounts receivable so sold and assigned was one against the above named defendant in the sum of $126.40. The last entry in such account purported to show that on July 24, 1920 the Exchange sold 100 pounds of twine to Stang. The plaintiff brought this action to recover upon said account. The complaint is in the usual form and alleges in substance the facts stated above and demands judgment for the amount of the account with interest. The answer is a general denial, but admits that the Havelock Equity Exchange was a (domestic corporation and that it has been adjudged bankrupt. The ■case was tried to a jury upon the issues thus framed and resulted in a ■.verdict in favor of the plaintiff. The defendant moved for a new trial. 'The motion was denied and the defendant has appealed from the judgment and from the order denying a new trial. Appellant urges that the judgment and order appealed from should be reversed because: (1) The trial court erred in admitting evidence prejudicial to the defendant; and (2) the evidence is insufficient to sustain the verdict. These contentions will be considered in the order stated. ¡ (1) The plaintiff offered and the trial court admitted in evidence what purported to be the portion of a loose-leaf individual ledger of the Havelock Equity Exchange showing the account against the defendant Stang; and it is contended that this record was inadmissible for the reason that it was not a book of original entry. 1 In laying a foundation for the introduction of the individual ledger, the plaintiff called as a witness one Voelz, who testified that he was the manager of the Havelock Equity Exchange during the years 1918, 1919 and up to and'after July 24, 1920; that he kept the books of account of the Exchange during this time; that the individual ledger account of John Stang then exhibited to him was in his (Voelz’s) handwriting. Voelz further testified that the individual ledger was posted from other documents in the elevator; that the first entries were made ■on sale slips and in what was denominated a “grain journal.” He *677 further testified that the “grain journal” was a permanent record of the Exchange, but that the individual ledger was the “permanent record of the individual accounts” receivable of the Exchange. The ledger purports to show not merely the amount of credits and debits but the items or articles of the particular purchases and sales.- And, as we construe the evidence, the individual ledger was the real permanent record of the transactions between the Exchange and each individual customer. In the circumstances we are of the opinion that the ledger was admissible in evidence and that a sufficient foundation was laid for its introduction. Fargo Mercantile Co. v. Johnson, 47 N. D. 304, 181 N. W. 953; 4 Jones, Ev. 2d ed. pp. 3307—3309. The undisputed evidence in this case shows that the ledger entries were made by Voelz, the person who had first hand knowledge of each transaction recorded. While the entries were not the first memoranda or record made of -each transaction, they were, we think, “entries in a book or other permanent form, in the usual course of business, contemporaneous with the transactions to which they relate, and as a part of or connected with such transactions, made by persons authorized to make the same,” and, “shown to have been so made upon the testimony of the person who made them,” and, hence, they were admissible in evidence under the rule, announced by a large number of the late cases and specifically put in force in this state by legislative enactment, which looks to permanent records as original entries. 4 Jones, Ev. 2d ed. pp. 3307-3309, 3311, 3312; Comp. Laws 1913, § 7909; Dr. R. D. Eaton Chemical Co. v. Doherty, 31 N. D. 175, 183, 185, 153 N. W. 968; Fargo Mercantile Co. v. Johnson, 47 N. D. 304, 181 N. W. 953. (2) The contention that the evidence is insufficient to sustain the verdict is predicated largely upon the alleged inadmissibility of the individual ledger entries. The verdict does not, however, rest solely upon such entries. As stated, Voelz, who was manager of the Have-lock Equity Exchange during the time the transactions were had between the Exchange and the defendant Stang, was sworn and testified as a witness upon the trial. He testified that the entries in the individual ledger were all in his handwriting. We have here then the testimony of the person who made the entries and who had personal knowledge of each of the transactions to which the entries purported to relate.' The testimony of Voelz is corroborated by that of the de *678 fendant Stang; for Stang testified that during the years 1918, 1919 and 1920 fie fiad a large number of transactions with, the Exchange and that until the fall of 1920 all such transactions were had with Voelz. When Slang’s testimony is considered as a whole it is a matter of serious doubt if be disputed tbe correctness of the account, or gave any unequivocal testimony of payment. Tbe answer contained no plea of payment but upon tbe trial defendant sought to amend the answer so as to plead payment. The application to amend was denied and no error is predicated upon sucb ruling. The defendant, however, was permitted to testify that in the fall of 1920 he sold some wheat to the Exchange and that in paying for the wheat, the Exchange deducted defendant’s indebtedness to the Exchange. Tbe defendant’s testimony as to such payment is somewhat inconsistent with testimony formerly given, and his testimony as to the amount so paid, if any, is quite indefinite. The defendant had the benefit of his claim of payment though no payment had been pleaded. Tbe jury, however, concluded that he was indebted in accordance with tbe books of tbe Havelock Equity Exchange, and we are agreed that the jury’s finding has substantial support in the evidence. The judgment and order appealed from are affirmed. Nuessle, Oh. J., and Bibdzell, Bubke, and Bubb, JJ., concur.