Shipman v. Glynn

Ward J.: For several years prior to December 2, 1890, Charles Glynn, a son of the defendants, and one McDonald, as copartners, were carrying on a retail coal business at the city of Niagara Falls. At that date Charles Glynn died, and his interest in the copartnership was assumed by Patrick Glynn, and the business was continued-by Patrick and McDonald until on or about the 10th of November, 1891, when the partnership was dissolved. The plaintiffs were wholesale coal dealers, transacting their business at Buffalo, N. Y. They supplied coal to the Niagara Falls concern until the tenth of November aforesaid, when the plaintiff Shipman went to Niagara Falls, saw the defendants and insisted upon their executing a bond and mortgage to secure the plaintiffs for $2,500 for coal sold and delivered to the concern. The defendants testified that they executed the bond and mortgage because of threats made by the plaintiff Shipman to have Patrick arrested for larceny unless they did so. This was denied, by Shipman and by his attorney who was present [427] when the threats were claimed to have been made, and the referee has found with the plaintiffs upon this question, which we regard as conclusive. The chief controversy xvas over the defense of payment of this bond and mortgage. The evidence of the defendants tended to show full payment; the plaintiffs’ evidence tended to support the opposite conclusion. The appeal presents questions of fact in which the defendants insist that the preponderance of evidence was so decidedly xvitli them that this court should reverse the judgment; especially do they insist that five notes that were afterwards given by the defendants for an amount which the defendants claim xvas due upon the bond and mortgage, and for the same debt, xvere paid by them before the commencement of the action. Tlieie is some force in this contention, but the plaintiff Shipman gave testimony disproving the payment of these notes, and, as we have reached the conclusion that we must grant a new trial upon exceptions taken to the admission of evidence, xve xvill not discuss the questions of fact further. Numerous exceptions xvere taken by the defendants’ counsel to the reception of evidence against them upon the trial, which are also urged upon this review, and which xve have carefully examined, "but xve do not find that any of them present reversible error except those which relate to the admission of the plaintiffs’ books of account, which contained the plaintiffs’ charges for coal sold and delivered and credits of payment thereon. Before the books xvere offered in evidence the plaintiffs proved by two witnesses, xvho had dealt xvith the plaintiffs and settled with them to some extent upon these books, that they kept honest hooks. It was also shoxvn that a portion of the coal charged upon these books had been delivered to the defendant Patrick Glynn, who carried on the coal business after the dissolution of the partnership of McDonald & Glynn, from railroad cars that had brought the coal from where it had been mined in Pennsylvania. The only other evidence given by the plaintiffs preliminary to offering the books in evidence, was that of the plaintiff ¡Shipman. He presented at the trial txvo books, one of which he called a “ ledger ” and the other an i<invoice book.”- ' The plaintiff Shipman testified that the invoice book xvas a book of original entry; that the defendants’ account on this book showed shipments [428] of coal until July 10, 1892. The mode of making up the books was as follows : On receiving an order for the coal from Glynn & McDonald, or from the defendant Patrick Glynn, the plaintiffs would send the order to the mines in Pennsylvania, with a request to the mine owners to fill the order, and, when the order was filled, the mine owner would send notice to the plaintiffs in Buffalo of the shipment, the car number, weight and size of the coal, and the name of the consignee. From that the plaintiffs would invoice and take a a copy of that invoice from these books and send it to the consignee and then post the account from the invoice book to the ledger and send a bill thereof with every carload to the consignees. The coal, in fact, never came into the possession of, nor was seen by, the plaintiffs or any of their agents or bookkeepers. The price of the coal was fixed by the plaintiffs themselves; and the books in question contained, in addition to what has been stated, the price of the coal as charged and cash entries of payments, and also entries of notes given and paid by the defendants. He testified that the books were made up by three different bookkeepers, two of whom were ladies who had left the plaintiffs’ employment before the action was tried and their whereabouts were unknown to the plaintiffs. The other was a man who was also absent and whose place of residence, if living, was unknown. Shipman testified that he had heard that-the man was dead. None of these bookkeeper’s were produced upon the trial as witnesses nor was it shown that either of the ladies was dead or without the jurisdiction of the -court, or that any attempt had been made to procure any of these bookkeepers upon the trial. The plaintiff Shipman also testified as to his conclusion that he knew when these entries were being made and that they were correct. On his cross-examination this plaintiff stated : “ I did not write up the books. I know in whose handwriting this account was kept. It was kept at the city of Buffalo, all of it, and the coal kept by the books was never inspected by the bookkeeper. The shippers at the mines sent us communications from the mines from which we made our invoices. Personally I know nothing about the correctness of the coal and cars except from the invoices. The parties shipping the coal are not in my employ. They belong to another company and no person in my employ had anything to do with the shipping of the coal.” [429] The defendants’ counsel objected to the reception of these hooks as improper, incompetent; that no proper foundation was shown for their introduction and that it had not been shown that they had been correctly kept by the person or persons who did actually keep them; that the bookkeepers who kept the books were not produced and no effort made by the plaintiffs to produce them so as to establish the correctness of the books. The referee overruled these objections, to which the defendants excepted. The counsel for the plaintiffs ■ asked the following question: “ Turn to book of accounts of November 10, 1891, and show the payments made by defendants and the amount now due.” This was objected to as incompetent and improper and on the ground that it was hearsay. This objection was overruled, to which the defendants excepted and the witness stated that the aggregate amount of payments was §3,975.95. Then followed a question by the plaintiffs’ counsel: “ What is the balance to be applied upon the mortgage after deducting the amounts to be paid for coal in accordance with agreement ? ” This was objected to as above, objection overruled and defendants excepted and the witness answered that the amount to be applied on the mortgage was §900, and the amount then due on the mortgage after applying payments was §1,785.08, including interest up to July 1, 1895. The books, therefore, became very important evidence, and evidence made by the plaintiffs themselves or their employees. The amount of the coal, weight and everything concerning it except the price was obtained entirely from the statements of the mine owners and was hearsay. Fixing the price of the coal and entering it upon the books were the acts of the plaintiffs. The cash items of credit, notes and all matters which went to make up the defendants’ side of the account were entered upon these books by the bookkeepers without any direction or authority from the defendants. The plaintiffs, in effect, put their whole case, so far as the defense of payment was concerned, upon their own books, struck a balance and testified from such books to that balance. We are referred to no authority authorizing the admission of this evidence. Books of account are sometimes permissible in evidence, although [430] they are the act of an interested party, when they are books of original entry, when the party kept no clerk, when they related to transactions within the knowledge of the persons making the entries, where they are entered at the time that the transaction to which they relate occurred, when some of the articles charged for were delivered, when it was shown that the party kept honest books. In some instances, where the entries were made by bookkeepers of transactions within the knowledge of the bookkeeper, and such bookkeeper is called to verify the entries, or if these persons were dead or beyond the jurisdiction of the court, and their handwriting proved, or the fact proved by other witnesses that they made the entries, the entries were held to be competent; but not as to cash items, not as to any matter dependent upon hearsay or information derived from third persons who were not sworn. Judged by these rules,- the objection as to the reception of these books and their contents in evidence was fatal, and this view is amply sustained by the following authorities: Vosburgh v. Thayer (12 Johns. 462); Gould v. Conway (59 Barb. 355); Ives v. Waters (30 Hun, 297); Dooley v. Moan (57 id. 535); Davis v. Seaman (64 id. 574); Smith v. Rentz (131 N. Y. 169); Sterrett v. Bull (1 Binn. [Penn.] 234); Stiles v. Homer (21 Conn. 507); 1 Whart. on Evidence [3d ed.], §§ 240, 245, 681, 685). The judgment should be reversed and a new trial ordered before another referee, with costs to the appellants to abide the event. All concurred. Judgment reversed and a new trial ordered before another referee, with costs to the appellants to abide the event.