Davis v. McClelland

FARRINGTON, J. Action by a partnership of lawyers begun in a justice’s court by filing a statement — 132 — of account. O’ne of the partners died before trial, and the survivor was appointed administrator of the partnership estate. A jury found for defendants. After plaintiff’s appeal to the circuit court there was a mistrial, the jury failing to agree, but at a subsequent trial nine jurors signed a verdict for $150', the total amount claimed. Defendants have now appealed. The only errors assigned for reversal go to the action of the court in admitting and rejecting evidence. Plaintiff Davis testified that the firm of Clay & Davis kept a regular set of books in their business and that he kept the book accounts — that he was the bookkeeper of the firm; that Mr. Clay never made a single entry on the books; that he (Davis) kept a journal daybook, and from that book he posted to the ledger account; that whenever any business was transacted, either by himself or Mr. Clay, or whenever any changes were to be made or credits given, he (Davis) attended to it on the books. He testified that he made an entry on April 1, 1912, on their journal daybook for the year 1912, at page 37 from information he obtained from Mr. Clay, and that this entry was made in the regular course of business. Although asked at two different times to state what the entry was, the witness never did so, but at the conclusion of his testimony, the book and page having been identified, the entry was offered in evidence. Defendants’ objection was as follows: “Defendants object to this for the reason that it would be purely hearsay as to these defendants, would be a self-serving declaration on the part of the plaintiffs and for the further reason that it is not a proper subject of book account, doesn’t undertake to be an account of merchandise sold or services rendered in the ordinary course of business but undertakes to contain and embody within it the terms and provisions of a contract which is to be performed in the future; no pretense or claim th it it is for services that had been rendered or any that were rendered — 133 — at that time. It shows upon its face it was for services, if any, that were to be rendered in the future and is not the subject of booh account.” This was overruled and exception saved, whereupon the entry was offered, as follows: “April 1, 1912. “McClelland & Denham to one year’s service from April 1,1912, $150. “To look after licenses, J. P. cases and little circuit court cases, but cases of serious import to be paid for additional.” Mr: Davis had stated in cross-examination that' he never had anything to do with the making of the alleged contract, and that if there was any contract with the defendants, it was made by Mr. Clay. The only other evidence given was by Mr: Davis concerning an alleged conversation he had one night in defendants’ saloon. He said that this occurred about the time defendant McClelland was supposed to have sold out his interest in the saloon; that McClelland invited him in to take a drink and spoke to him about the account; that “he,was on a trade or about to sell out, and wanted to know if I would be willing to cancel our contract with the firm. I told him yes if they would pay up we would be willing to cancel the contract at that time. It had run something like six months .is my recollection.” This suit was filed on April 91, 1913. -Mr. Clay died in May, 1913. Defendants were not permitted to testify concerning the alleged contract because of the death of Mr. Clay. The court refused to permit them to show by Mr. Davis, as a circumstance that there was no such contract entered into by defendants, that the witness did not render any services to defendants during the year in question and did not know of Mr. Clay rendering them any service during the same period. The court also refused to allow defendants to show that they actually did employ other attorneys during this — 134 — period to look after a license and other attorneys to represent them in a matter of business for the firm, and still another attorney to represent them in preparing contracts. The foregoing is a summary of the evidence that was before the jury. The importance of the book entry to the plaintiff’s case is at once apparent. In the old case of Ward v. Powel, 3 Har. (Del.) 379, it was held that a subscription to a paper, cannot be proved by a book of original entries, but, the subscription being proved,^the price may become a proper • subject of book charge. In the case of Horton v. Wood, 66 Hun, 632, 21 N. Y. Supp. 178, in an action for commissions due plaintiff for services as canvasser, on an issue as to an oral contract made with plaintiff by defendant’s manager, who had since died, it was held that an entry of the contract in a book, made by the manager at the time, but which was not read or shown to plaintiff, was inadmissible to show the terms of the contract. The court in that case said: “But no authority is cited to show that a written statement of the facts in a disputed cause can be proved after the death of the writer simply because entered in a book.” In a note in 52 L. R. A. at page 585 we find this statement with authorities cited in support: “Books of original entries are evidence of goods sold and delivered when the entry was- made at the time of the delivery of the goods, or when they were set apart for delivery; but if the entry was made before the goods were delivered or set apart for delivery, the books are not such evidence.” In Hart v. Livingston, 29 Iowa, 217, the plaintiff offered the following entry appearing in a book of original entries: “Bo’t of Livingstons 25' fat hogs, 12 head delivered immediately, balance when fattened, pd. $15.” The Supreme Court in holding that the entry was inadmissible, said: ‘ ‘ The entry was rather — 135 — of a contract or agreement, made by the party himself in his own book, and would have been just as competent if made upon separate slips of paper, as when found in'this book.” In the ease of Batcheller v. Whittier (Cal.), 107 Pac. 141, the action was to recover compensation for legal services rendered in successfully prosecuting an action involving real estate. The plaintiff offered an account book containing an entry “agreed fee to be one-half.” The court said that such an entry is a mere memorandum of a special contract and had no proper place in an account book, citing 2 Wigmore on Ev., sec. 1541. In 17 Cyc. 380, the rule is declared that books of account are inadmissible to prove the terms or contents of a special agreement, citing the memorandum opinion of Daum v. Neumeister, 2 Mo. App. 597. That memorandum opinion is as follows: “A party cannot prove a special contract for services by-entries in his own book, coupled with his testimony that he made all the entries in his business from day to day, and that, at the time he made said contract, he entered the same in said book.” The foregoing citations are given as stating what we conceive to be the law on the subject in hand, but we are not to be considered as adopting everything said in the opinions. It is plain that the entry in the journal daybook was made a part of plaintiff’s case to support the contention that a contract was made and that it gave rise to certain obligations. It was manifestly not offered for the purpose of proving the value of services rendered, because none had been rendered when the entry was made, and if plaintiff’s theory is correct the money would be due even though defendants did not require any service. The early rule in this State was that a plaintiff’s book of original entries, kept by himself, was not ad — 136 — missible, with or without his suppletory oath (Hissrick v. McPherson, 20 Mo. 310), and that rulé was followed in several reported cases, but since the decision was rendered in Anchor Milling Co. v. Walsh, 108 Mo. 277, 18 S. W. 904, it is clearly the law that books of .original entry, shown to have been kept in the regular course of business, are admissible in evidence, even in favor of the party by whom they are kept. ' Although no case appears to have reached the appellate courts of this State wherein an attorney offered his account book of original entries, kept in the usual course of business, the trend of our decisions leads us to believe that the rule extends to the books of all persons practicing in a regular craft or occupation which makes it necessary for books to be kept as a record. [See 17 Cyc. 369;] It may be said that the case of Daum v. Neumeister, supra, was decided before the change occurred in the Missouri rulings, but if the memorandum of the opinion is a correct statement of the decision, we think it is still good law. In our recent case of Ranney v. Lewis, 167 S. W. 601, the action was by a lawyer (Banney) to recover from defendant (Lewis) the alleged value of legal services. The plaintiff testified that as soon as defendant left the office after engaging him, he made a memorandum in his office docket of the amount he told defendant he would charge, explaining in his testimony that in this docket he kept a list of the different cases he was employed in. Later plaintiff offered the entry in evidence, and claimed in this court it should have been admitted as part of the res gestae. . We held that the entry was inadmissible because made in the absence of the defendant and there was no evidence that he ever saw it. It is true, that was not a case involving the “ account book” rule. Respondent has cited Codman v. Caldwell, 31 Me. 560; Bay v. Cook, 22 N. J. L. 343; Bass v. Gobert, 113 Ga. 262, 38 S. E. 834, and 17 Cyc. 369, footnote 87. — 137 — None of these cases, nor any of those cited in the footnote just mentioned, are where the entry sought to be introduced was one made before the services were performed. The case of Codman v. Caldwell, 31 Me. 560, fails to show just when the work done was performed as to the time of the entry in the book. But the case of Dwinel v. Pottle, 31 Me. 167, expressly holds that where á party relies upon his own book and suppletory oath, as evidence of the performance of services or the sale of articles, it is indispensable, in order to a recovery, that he should testify that the services were performed or the articles delivered. The principle that we think controls this case is stated in Jones on Evidence (2 Ed.), sec. 574, as follows: “The book to be admissible must he a record of things actually done, and not of orders, executory contracts and things to be done subsequently to the entry,” citing Hart v. Livingston, supra; Whisler v. Drake, 35 Iowa, 103; J. Snow Hardware Co. v. Loveman, 131 Ala. 221, 31 So. 19; and Hazer v. Streich, 92 Wis. 505, 66 N. W. 720. To the same effect is 2 Wigmore on Evidence, sec. 1541, and 9 Am. & Eng. Ency. Law, p. 933 — citing a number of cases, among others, Bailey v. Harvey, 60 N. H. 152, which holds, that book accounts are incompetent to prove the performance of a special contract, yet after the goods are delivered, under the contract the entry of charge then made is competent evidence to prove the delivery of the goods and their amount.- The entry admitted in evidence in the instant case shows upon its face that the .services contemplated were to be performed in the future — after April 1st, the date of the entry — and that no money was due the law firm until three months after the entry was made. This entry, although in a book regularly kept for the accounts of the firm, was not such an entry of a book account as is contemplated in the shopbook exception to the hearsay rule, but was nothing more than an — 138 — entry of a private memorandum of a special*agreement' concerning which there is no evidence in the record that the defendants ever knew or heard of the same having been made. There is no showing or attempt to show that any services of any kind were ever performed by this law firm for defendants during the time the alleged contract was supposed to be in force. We must hold that it was error to permit the memorandum to be introduced in evidence. The judgment is reversed and the cause remanded. Robertson; P. J., and Sturgis, J., concur.