Stettauer v. White

Per Curiam: This is an appeal from the Appellate Court for the First District, and the only questions of law which are presented for our consideration arise upon three instructions which were given for the defendant on the trial of. the case in the Superior Court of Cook county. The action was upon an alleged agreement for the purchase .from the plaintiffs of a certain demand in their favor against the Michigan Iron Company for goods sold and delivered. The objection taken to two of the instructions is, that there is nothing in the evidence upon which one of them can be fairly based, and that they were calculated to mislead the jury- Upon an examination of the evidence and considering the instructions, we fail to perceive any sufficient ground of objection to them in the respects named, or otherwise. There is more serious question upon the other instruction, which was as follows: “2. The jury are instructed, that in order that the plaintiffs may recover in this case, they must prove to the satisfaction of the jury, that at the time the alleged contract was made, they had a claim against the said Michigan Iron Company for the amount stated in the declaration, and that in determining whether such proof has been made, they must exclude from their consideration all testimony relating to said claim, derived from the books of said plaintiffs, or from hearsay, and also entries in the books themselves, the proof necessary to make such books of account competent evidence not having been made in this case.” The statute in relation to books of parties in this State is as follows-: “ Where, in any civil action, suit of proceeding, the claim, or defence is founded on a book account, any party or interested person may testify to his account book and the items therein contained; that the same is a book of original entries, and that the entries therein were made by himself, and are true and just; or that the same were made by a deceased person, or by a disinterested person, a non-resident of the State at the time of the trial, and were' made by such deceased or non-resident person in the usual course of trade, •and of his duty or employment to the party so testifying ; and thereupon, the said account book and entries shall be admitted as evidence in the cause.” Eev. Stat. 1874, p. 489, sec. 3. The testimony relied upon to render the books competent was that of the bookkeeper of the plaintiffs, producing the books of the firm, and that the amount as claimed appeared •upon the ledger, the entries being in his handwriting; that of a witness who testified that the sales-book produced contained the original entries of the transaction with the Michigan Iron Company, that the entries were in the handwriting of the witness, made in the ordinary course of business, of goods that are reported as having been sold—the entries showed the' amount as claimed, and as appearing upon the ledger—that the entries were made in the regular course of business; that, according to the ¡course of business, the goods were brought into the packing room and there assorted by a man employed for that purpose, who called them off to the witness as entry clerk, who made the entries of them in the books as they appear; then the entries and the goods are compared; then the goods are packed and shipped in the order of business—that he had no personal knowledge of the sale or delivery of the goods. One of the plaintiffs testified that the original entries of goods sold by the plaintiffs are made in the sales-books produced; that these books of the plaintiffs have been fairly and honestly kept, in the course of the business of said firm. Evidence was offered of the carrier’s shipping receipt for the transportation of the goods, and as evidence which is claimed as tending to show the receipt by the Michigan Iron Company of a portion of the goods. The defendant himself stated, on his examination as a witness in the case, that he never admitted the correctness of the debt of the Michigan Iron Company to the plaintiffs, but he told one of the plaintiffs that the Michigan Iron Company disputed its correctness—disputed over one-half of the goods. It is contended that the books were admissible under the statute. But the statute does not seem to provide for the case where the entries have been made by a disinterested living and resident person, as here. We think the statute does not apply. It is then, in that case, insisted the books were admissible at common law. But at common law, where the clerk who made the entries had no knowledge of the correctness of the entries, but made them as the items were furnished by another, it was essential that the party furnishing the items should testify to their correctness, or that satisfactory proof thereof, (such as the transactions were reasonably susceptible of), from other sources should be produced. -Such evidence was not here produced. On no ground do the majority of the court think the books were admissible under the preliminary proofs made. The following cases are identical in principle, and are conclusive against appellants. Green v. Caulk, 16 Md. 573; Thomas, Garnishee, etc. v. Price, 30 id. 483; Kent v. Garvin, 1 Gray, 148; White v. Wilkinson, 12 La. Ann. 359. The judgment of the Appellate Court is affirmed. Judgment affirmed.