Countryman v. Bunker

McGrath, C. J. Suit is brought to recover a small balance of wages, and the sum of $60, claimed to have been loaned to defendant. Plaintiff was allowed to refresh his memory from a pocket memorandum, book, which had been kept in pencil. On the cross-examination of plaintiff, counsel for defendant called attention to a certain page, and asked if it had not been “rubbed some with a pencil.” Plaintiff responded that it had not. Defendant’s counsel then offered that page in evidence. The court ruled that the plaintiff was entitled to have the whole book before the jury. The ruling was correct. The point made was that the page referred to indicated that it had been rubbed. A comparison of that with other pages of a pencil-kept book would have disclosed whether there was anything peculiar in the appearance of that page. Defendant offered in evidence a memorandum book in which certain entries were made by his wife, and the court excluded it. The ruling was correct. The wife knew nothing about the details of the business, and only made such memoranda as her husband requested her to make. It was not claimed that the book contained an accurate statement of all the items of account between the parties. It contained simply memoranda of when plaintiff commenced work, the rate of wages, and of moneys paid to plaintiff. It contained no account of lost time, and it was claimed that moneys were paid to plaintiff which were not entered upon the book. The wife admitted that her husband received $30 from plaintiff, which she received and placed in the safe, and that no memorandum was made in the book of its receipt. In order to entitle books of account to reception as evidence, it must appear that the [220] party keeping and producing them is usually precise and punctilious respecting the entries therein, and that they are designed at least to embrace all the items of the account which are proper subjects of entry. The other assignments relate to the court’s instructions to the jury. . Some parts of the charge are open to the criticism that they are argumentative, but we are not able to say that defendant was prejudiced. The judgment is therefore affirmed. The other Justices concurred.