Grogan v. Michael

Opinion by Mr. Justice Hughes, The plaintiff’s statement of claim averred that Christ Michael had requested the plaintiff to secure insurance to cover and protect certain property he owned or in which he was interested. The plaintiff, having his own insurance agency, secured the insurance and charged the defendant with the premiums due thereon. These accumulated premiums over a period of years on property owned solely by the defendant amounted to $2,722.44 and as against these premiums the plaintiff credited the defendant with payments in the amount of $1,556.44. On properties in which he was interested with others, the premiums amounted to $4,393.18 and credits and payments thereon totaled $2,029.57, leaving a balance owing of $2,363.56. The total claimed by the plaintiff from the defendant was $3,920.00, with interest from the due dates. Copies of book entries of the plaintiff were attached to the statement of claim. The affidavit of defense denied the indebtedness, denied that the insurance was taken out at the orders or instructions of the defendant, but stated it was obtained for one Louis F. Michael and charged to him in the plaintiff’s books of original entries. At the trial the defendant admitted Louis F. Michael, his brother, had placed certain insurance for and on defendant’s behalf with the plaintiff. *371 The plaintiff and Ms bookkeeper testified to tbeir system of keeping records by line cards and ledger book, copies of wMcli were attacked to tke statement of claim and were admitted in evidence. By way of defense, tke defendant testified tkat tke plaintiff kad told kim ke, tke defendant, “didn’t owe kim any money” and “tkere was nothing due from you [tke defendant].” The defendant offered a series of canceled ckecks to evidence payments on insurance, wkick plaintiff claimed were used to apply against a mortgage account ke kad handled for tke defendant and his brotker, and tke plaintiff showed by his records tkat ke kad so applied these ckecks except one for $66.91. Tke trial judge at tke close of tke testimony affirmed tke plaintiff’s point for binding instructions “for the full amount of Ms claim less three ckecks wkick ke was not able to account for. They total $66.91. . . Deducting tkat from $3,920.00, a verdict was directed for “$3,853.09 with interest from June 2, 1936, or a total of $5,360.20.” This directed verdict was for an amount wkick tke plaintiff’s books of original entry indicated was owing on an open account. It was supported by tke oral testimony of the plaintiff and kis bookkeeper. Tke defendant admitted ke kad ordered kis brotker to purchase some insurance. Tkere was no admission he had authorized tke amounts to issue which plaintiff alleged, nor kad ke admitted the cost or value thereof. Tkere was also evidence by the defendant of payment of part of tke sum claimed by tke plaintiff as well as an admission by the plaintiff to tke defendant tkat tke defendant owed kim nothing. In this state of the record we cannot agree with the court below in the conclusion “Since tke plaintiff’s proof was entirely documentary and not only established kis claim but conclusively refuted tke contention of tke defendant, tke verdict was properly directed.” Where account books are the basis of tke plaintiff’s claim, the jury must pass upon their weight *372 and credibility as evidence. The introduction of the books is not conclusive evidence as to their contents. The jury should examine and pass upon their appearance, the manner in which they are kept, and the character of him who offers them. “Books of original entries are evidence to prove a claim for goods sold and services rendered, if made in the regular course of business, but as they are evidence made by a party for himself, and very often incapable of being tested by other proof, they are to be guardedly received, and received only to prove a .sale and delivery, or labour for the alleged debtor, for which the law implies a promise to pay”: Hale’s Executors v. Ard’s Executors, 48 Pa. 22, 23; Fulton’s Estate, 178 Pa. 78, 87, 35 A. 880. In McGlinn Distilling Co. v. Dervin et al., 260 Pa. 414, 103 A. 872, the plaintiff’s evidence of sales and deliveries of liquors to Michael Dervin consisted of proving the handwriting in an alleged book of original entries called an order book, following this up with ledger entries; and an offer to prove actual deliveries by plaintiff’s teamsters; and a Avitness Haig was called to identify the handAvriting of the decedent, and of other parties whom the plaintiff alleged signed the delivery receipts; and also endeavored to identify the handwriting of certain drivers, dead or absent, whose names were signed to the delivery receipts. No evidence was produced by the defendant to contradict the testimony introduced by the plaintiff’s witnesses. The court said (page 415) : “The plaintiff’s testimony consisted largely of oral testimony; the evidence, for instance, of Haig, that certain books were original order books; that the handwriting of various parties since dead avus the handwriting of said parties; that the United States gaugers determined hoAV much Avhiskey was in a barrel, and gave the figures for the same to the clerk, who entered them in the books. . . . (page 417) : If all the facts produced by the plaintiff were true, the plaintiff Avould be entitled to recover, but it was clearly the province of the jury to pass upon *373 such of the evidence produced by the plaintiff as was not admitted to be true.” In this case the plaintiff called witnesses to testify to the manner in which his records were kept, to identify the persons making the entries therein, to state the authority of such persons to make such entries, to the delivery of the policies, to the manner in which credits and payments were handled, as well as to dispute the defendant’s statement and evidence that he had paid all his indebtedness to plaintiff and that he owed nothing. Books of original entry, admitted in evidence, were prima facie, but not conclusive, evidence of the matter they record: Philadelphia Inquirer Co. v. Sabia, 90 Pa. Superior Ct. 266. “However clear and indisputable may be the proof when it depends on oral testimony, it is nevertheless the province of the jury to decide, under instructions from the court, as to the law applicable to the facts, and subject to the salutary power of the court to award a new trial if they should deem the verdict contrary to the weight of the evidence”: Reel v. Elder, 62 Pa. 308; Nanty-Glo Boro. v. American Surety Co., 309 Pa. 236, 238, 163 A. 523. Counsel for the appellee seems to infer the Uniform Business Records as Evidence Act adds weight to the proof offered by plaintiff. In Freedman v. The Mutual Life Insurance Co. of New York, 342 Pa. 404, 414, 21 A. 2d 81, we said “the Act did not intend to make relevant that which is not relevant, nor to make all business and professional records competent evidence regardless of by whom, in what manner, and for what purpose they were compiled, or offered.” The evidence should have been submitted to a jury, under proper instructions from the court, and there should have been a verdict returned by the jury. Judgment reversed and a venire facias de novo awarded.