Cameron Lumber Co. v. Somerville

Moore, J. The plaintiff sued to recover a balance of $126.79 and interest thereon, claimed to be due from defendant. The case was tried by a jury, who returned a verdict for $119.07 and interest thereon. The case is brought here by writ of error. It is claimed the court erred in admitting in evidence the books of plaintiff without calling all the clerks who made the entries. It was shown that the books were books of original entries; that they were properly kept; that settlements had been made with different parties, and the books had never been disputed, and the parties who settled from them had accepted them as correct. Several clerks were called by whom sales making up a large proportion of the items for which suit was brought were proven, and who had made the original entries. A few of the items were not thus proven. These were sales made by two clerks shown to be beyond the jurisdiction of the court, but the entries were shown to be in their handwriting. The defendant was a witness in his own behalf. On the cross-examination he was shown the bill of particulars and asked; “ Q. You can’t think of any items that you object to upon that bill of particulars, can you ? 4 ‘A. There is an order to some one there of $7.60. I did not give that. The man that cut logs went and got it. I [554] went down there, and talked to Mr. Salchow about it. I said, ‘ I told you not to give them anything without an order ’ ‘All right,’ he said, ‘but I would like to have you see that this is paid.’ And I said I would. Yes, I agreed to pay it.” The verdict rendered would indicate this $7.60 was not included therein. We think the court did not err in admitting the books in evidence under this showing. Montague v. Dougan, 68 Mich. 98 (35 N. W. 840); Ganther v. Jenks & Co., 76 Mich. 510 (43 N. W. 600); Lester v. Thompson, 91 Mich. 245 (51 N. W. 893); Seventh-Day Adventist Publishing Ass’n v. Fisher, 95 Mich. 274 (54 N. W. 759); Baxter v. Reynolds, 112 Mich. 471 (70 N. W. 1039). Complaint is made of the language and conduct of counsel in putting in his testimony. ‘ Some of the language used was justified by the record. Some of the questions put were leading, but as to them the court sustained the objection of counsel for defendant. Complaint is also made of language used by counsel in his argument to the jury. The language was improper, and in a doubtful case, if the effect of it had not been corrected by the trial judge, we should regard it as prejudicial error calling for a reversal. In his charge to the jury the judge said* “The arguments of counsel and the remarks are given for the purpose of enabling you and aiding you to arrive at a just verdict, and, as far as their arguments and their reasons are based on the evidence in the case, you should consider them and receive them for what they are worth. Where remarks are made by counsel not based on the testimony, whether in the progress of the trial or during the argument, of course these remarks will not be considered by you. I charge you that you are to arrive at your verdict on the testimony as you hear it from the witnesses and the law as given by me, also, of course, from the several exhibits admitted in evidence, and not from what the attorneys may say it is. There were certain remarks of counsel on certain testimony which was offered, and which was given in your hearing, and then stricken out by the court, and, as to such remarks and testimony so stricken out, you will give no attention at all. It is no part of this case.” [555] Under the facts disclosed by the record, we would not feel justified in setting aside the verdict because of the conduct of counsel. Battishill v. Humphreys, 64 Mich. 514 (38 N. W. 581); People v. Hess, 85 Mich. 128 (48 N. W. 181); People v. Pope, 108 Mich. 361 (66 N. W. 213); People v. Swartz, 118 Mich. 292 (76 N. W. 491). We do not deem it necessary to discuss the other assignments of error. Judgment is affirmed. Hooker, C. J., Grant and Montgomery, JJ., concurred. Long, J., did not sit.