Wilkes v. Clark

The opinion of the court was delivered by Porter, J.: The defendant appeals from a judgment in plaintiff’s favor for a balance claimed to be- due for the purchase' price of thirteen cars of coal sold and delivered to the defendant by Robert Locke who assigned his claim to the plaintiff. The petition alleged that tlie coal was sold at mine weights and upon agreed prices and terms. The answer was a general denial with a cross-petition asking judgment against the plaintiff because of- alleged- shortages in weights of the [494] coal, and a further claim for commissions due on certain cars. The case is one involving facts which have been determined by the jury adversely to the contentions of the defendant. The errors complained of are technical. Locke was a witness for the plaintiff and testified to the correctness of a typewritten statement made from data furnished by himself showing the date, name of the car, car number, weight, price per ton, and the amount credited by proceeds of the draft in each instance, and the balance due on each car; that he made every shipment, saw every car loaded, attended the weighing of the coal, received the order slips from the defendant by mail, put the car numbers on the order slips when they were filled, on the waybills when they were shipped, figured up every mine car and drew each draft for every car shipped; that he had personal knowledge at the time of every detail mentioned in the exhibit. Over defendant’s objections the witness was permitted to use the memorandum to refresh his recollection, and the memorandum was also admitted in evidence. This was not error. (Garden City v. Heller, 61 Kan. 767, 771, 772, 60 Pac. 1060.) It is seriously insisted that the court committed error in admitting copies of the bills of lading because they were not the originals. It seems that they were made in triplicate by impression sheets. They were made by Locke, one copy it seems given the railway company, one copy sent to the defendant through the bank with the draft attached, and one- copy retained by himself. Carbon impressions of papers of this kind made at the same time are the same as originals. “It is not material which one is mailed and which one retained by the writer and either one may be offered as primary evidence of the contents of the letter. (Glass Co. v. Pierce, 87 Kan. 548, 549, 125 Pac. 108.) There was no error in permitting the plaintiff to prove the weights of coal at the mines'. The testimony showed that those were the weights which by the con [495] tract between the parties were to govern. It is true 'that Locke admitted on the witness stand that there had been a complaint by the defendant of a shortage in some of the cars, and at defendant’s request he consented to leave a margin in the amount of the draft; that first it was agreed that this margin should be ten dollars, but at the defendant’s request it was agreed that on future drafts it should be twenty-five dollars, and that the original contract had not made provision for this. We can not agree with, the contention that this evidence is conclusive that the weights of coal at the destination should govern the contract. There was abundance of competent evidence not only given by the plaintiff but admissions by the defendant to warrant the verdict and judgment. It appears that the defendant purchased the coal- for reshipment to other points and the court refused to permit him to testify what the destination weights were at the point of reshipment upon information furnished him by his consignee. The testimony was not competent even if it be conceded that there was some evidence tending to sustain the defendant’s contention that weights at destination should control. We find no error in the record and the judgment will be affirmed.