Kaye v. Taylor

Bruce, J. This is one of the numerous cases in which a client has been directed by his attorney to bring his books of account with him when attending a trial as a witness on his own behalf, but has neglected and failed to comply with the request, and has then complained because his own negligence has made it impossible to prove his case. The neglect of a litigant to produce competent evidence which is in his possession does not justify a court in permitting the introduction of that which is secondary and incompetent; and if such court has inadvertently admitted the same under objection, he can later correct the error by excluding the evidence from the consideration of the jury. Turner v. American Security & T. Co. 213 U. S. 257, 53 L. ed. 788, 29 Sup. Ct. Rep. 420; Pennsylvania Co. v. Roy, 102 U. S. 451, 26 L. ed. 141; Ware v. Pearsons, 98 C. C. A. 364, 173 Fed. 878; Fowles v. Rupert, 143 Mich. 246, 106 N. W. 873; Bishop v. Chicago, M. & St. P. R. Co. 4 N. D. 536, 62 N. W. 605; Mighell v. Dougherty, 86 Iowa, 480, 17 L.R.A. 755, 41 Am. St. Rep. 511, 53 N. W. 402; Yakima Valley Bank v. McAllister, 37 Wash. 566, 1 L.R.A.(N.S.) 1075, 107 Am. St. Rep. 823, 79 Pac. 1119; Mallory v. Fitzgerald, 69 Neb. 312, 95 N. W. 601; Townsend v. Greenwich Ins. Co. 86 App. Div. 323, 83 N. Y. Supp. 909, affirmed in 178 N. Y. 634, 71 N. E. 1140; Megrue v. Lennox, 59 Ohio St. 479, 52 N. E. 1022. The neglect of a litigant to produce competent evidence which is in [298] his possession does not justify the court in forcing the opposing party to meet and contradict that which is hearsay and incompetent, provided it is seasonably objected to. Nor does the fact that a elient has neglected to furnish and bring with him competent evidence which he has in his possession make it obligatory upon a court to adjourn the case, and to keep in idleness a jury which is maintained at great expense by the community, in order to allow the litigant time in which to obtain such evidence. The granting of a continuance or adjournment, indeed, is -discretionary with the trial court, and this discretion will only be interfered with where it has been clearly abused. Webb v. Wegley, 19 N. D. 606, 125 N. W. 562; Armour & Co. v. Kollmeyer, 16 L.R.A.(N.S.) 1110, 88 C. C. A. 242, 161 Fed. 87; Cole v. Strafford, 12 Iowa, 345; Leach v. Detroit Electric R. Co. 125 Mich. 373, 84 N. W. 316. In any event due diligencé should be shown on the part-of the applicant. Benoit v. Revoir, 8 N. D. 226, 77 N. W. 605; Kuhland v. Sedgwick, 17 Cal. 123; Allen v. Brown, 72 Minn. 459, 75 N. W. 385. So, too, when an application is made for an adjournment for the purpose of obtaining evidence, the materiality and nature of that evidence should be shown. In the case at bar, the evidence sought to be obtained consisted of books of account, but the application merely stated that “certain documents were required.” The character and materiality of the evidence was therefore not clearly shown. Stewart v. Sutherland, 93 Cal. 270, 28 Pac. 947; Lomax v. Holbine, 65 Neb. 270, 90 N. W. 1122; Weston v. Proctor, 37 Misc. 800, 76 N. Y. Supp. 950; Hibbets v. Hibbets, 117 Iowa, 177, 90 N. W. 613; Gaines v. White, 1 S. D. 434, 47 N. W. 524. When an action is brought upon a balance claimed to be due upon a book account, and the books of account are in the possession of the plaintiff, a statement of the plaintiff that there is owing him on such account a certain sum of money does not constitute competent evidence. Great Western Life Assur. Co. v. Shumway, 25 N. D. 268, 141 N. W. 479. These are practically the only questions to be decided upon this appeal. Plaintiff sued upon a book account. He failed to produce the books in evidence as a whole, or to have them proved by the bookkeeper who made the entries therein. He merely introduced some sheets from a loose leaf ledger which were the work of his bookkeeper, and a mem [299] -orandum of account which was made by such bookkeeper. It is true that as to the debits on the account, he testified from the original drafts which were introduced in evidence. The credits, however, he sought to prove without any independent knowledge or recollection, and from the memoranda made by the bookkeeper, and by stating generally that there was a balance due him of some $425. It is quite clear that even though the evidence of the debits was admissible and the drafts were the best evidence, the testimony as to the credits was entirely hearsay. It seems to be clear that when one sues on .a balance claimed to be due on a book account, he does not establish that balance by merely proving the debit side of the account, and testify generally that a certain balance is due when he admits that there are numerous credits. It is true that some of the hearsay and incompetent evidence was admitted by the court, but it was admitted under objection, and the error could afterwards be corrected by excluding the evidence from the consideration of the jury, which was done in the case at bar. We may add that even upon the application of the plaintiff for an adjournment in order to allow him to get his books, which had been sent for, and which he expected upon a later train, there was no showing ■of the nature and materiality of the evidence. The judgment of the District Court is affirmed.