Mattingly v. Shortell

[56] Opinion by Judge Barker Reversing. This is an action by James D. Shortell to recover of Miles P. Mattingly a balance alleged to be due him for services rendered as bookkeeper and general manager of his business as a distiller in Owensboro, Ky., for a period of time running from 1882 to 1901. This balance is made up of three items: First, an account stated June 30, 1896, showing a balance due of $1,-415.40; second, a balance due for services rendered from June 30, 1896, to December 31, 1900, at $100 per month; and third, a balance due from December 31, 1900, to December 20, 1901, at $75 per month. The answer placed in issue the account stated as of June 30, 1896, denied the rendition of the services from December 31, 1900, to December 20, 1901, and as to the second item of the claim pleaded payment and counterclaim. A trial resulted in a verdict in favor of appellee for the amount claimed in the petition. From the judgment entered upon this verdict, appellant is here on appeal. The burden of proof and the closing argument were awarded appellee oyer the -objection of appellant. This, we think, was error. Had the case been submitted without any . evidence, judgment must have gone for appellee for a part of the amount claimed in 'the petition. Section 526 of the Civil Code of Practice provides: “The burden of proof in the whole action lies on the party who would be defeated if no evidence were given on either side. ’ ’ This means that the burden of proof is on the party against whom such ■a judgment would be rendered as carries the costs. Walling v. Eggers, 78 S. W., 428, 25 Ky. Law Rep., 1564. This being true, it was error to deny the concluding argument to appellant. Royal Insurance Co. v. Schwing, 87 Ky. 410, 10 Ky. Law Rep., 380, 9 S. W., 242; Fireman’s Insurance Co. v. Schwing, 11 S. W., [57] 14, 10 Ky. Law Rep., 883; Crabtree v. Atchison, 93 Ky., 338, 14 Ky. Law Rep., 313, 20 S. W., 260; Lucas v. Hunt, 91 Ky., 279, 12 Ky. Law Rep., 871, 15 S. W., 781. In support of his plea of payment, appellant undertook to show by evidence that he had assigned to appellee a note of T. M. Hill for $1,500, secured by an insurance policy on the life of Hill for the amount of the note, and that appellee accepted it in. part payment of his clairq for services. This was denied by appellee, who claimed that the note and the insurance policy were transferred to him under the belief that Hill was about to die, and that Mattingly’s creditors (he having become financially embarrassed) would attach the amount of the insurance policy; that to prevent this the assignment of the note and the transfer of the policy were made for the accommodations of Mat-tingly, and the ■ proceeds were to be credited on Shortell’s debt for services when paid; that Hill had recovered his health, but was insolvent, the policy had been allowed to lapse, and the note was entirely worthless. ' In evidence of his side of the transaction, Shortell had entered it on the books of his employer (he being the bookkeeper) as he understood it, and also certain statements of Hill concerning the matter. This entry, and especially so much of it as contained a statement that the note was to be credited on the account for services “when paid,” Mattingly claimed was entered without his knowledge or consent. Conceiving that this charge placed his character in issue, appellee was permitted by the court, over the objection of appellant, to introduce various witnesses to testify as to his general reputation for honesty. The issi^e between the parties was of a civil and not of a criminal nature, and therefore did not involve the character of appellee in the sense that would authorize [58] the introduction of evidence of general reputation to support it. The question was whether or not Mat-tingly assigned the Hill note and Shortell accepted it in part payment. Shortell entered in the books of his employer his understanding of the transaction, but the correctness of his understanding did not involve his character. In the case of Evans v. Evans, 93 Ky., 510, 14 Ky. Law Rep., 628, 20 S. W., 605, it was said: “In civil actions evidence of general reputation is not admissible, unless the proceedings be such as to put the character of the party directly in issue. ’ ’ See, also, Morris v. Hazelwood, 1 Bush, 210, Continental Insurance Co. v. Jachnichen (Ind. Sup.) 10 N. E., 636, 59 Am. Rep., 198, and Dudley v. McCluer (Mo.) 27 Am. Rep., 273. Under the influence of this evidence, the jury might well believe they were trying Shortell for a crime, and hesitate long before they would be willing to blast his good name on an adverse verdict. This was manifestly prejudicial to appellant. We think the trial court also erred in instructing as to the account stated, permitting the jury to find for the plaintiff on this issue on a quantum meruit, although they might believe that the account was not stated, as alleged, on June 30, 1896. When an account is stated between a-debtor and a creditor, and a balance struck and agreed upon, this constitutes the cause of action, and must be proved as alleged, and if not so proved there will be a variance, unless the pleadings are amended. The court erred in permitting appellee to read as evidence his entry concerning the note, containing statements made by Hill to him concerning the transaction. These statements were mere hearsay, and the fact that appellee had entered them upon his employer’s books added nothing to their competency. There was no variance between appellee’s allega [59] tion concerning the stated account, in which he alleged an unconditional promise to pay, and the evidence adduced upon the trial that appellant promised to pay “when able.” The citation of authority on this point by appellant were all cases where the party making the conditional promise had been discharged from the debt by proceedings in bankruptcy. This discharge relieved the debtor from his original obligation, and his subsequent promise constituted a new cause of action, and necessarily this must be proved as alleged, and, if the condition be alleged, then it must be proved to have happened. This principle has no application to the case at bar. Here there was a subsisting claim for services rendered, which was definitely ascertained by the parties by stating the account, and the law implied a promise to pay. The promise to pay when able meant to pay at once. (Kincaid v. Higgins, 1 Bibb, 396; Cecil v. Welch, 2 Bush, 168, 92 Am. Dec., 481.) For the reasons indicated, the judgment is reversed for proceeding's consistent with this opinion.