Taylor v. Horst

Collins, J. As the determination of this appeal can be made to turn upon the alleged error in the conclusions of law from the facts found, no other questions will be considered. The court found as a fact that on July 28, 1891, after the decease of Ann Singer, her surviving husband, Alexander Singer, who died pending an appeal from the probate to the district court of the matter now before us, executed and delivered the instrument set out in full in the findings. While the exception therein made is awkwardly phrased, its evident construction is that he there assigned, transferred, and set over for a money consideration to the heirs at law of his deceased wife all of his rights and interests in her estate, and released to them all claims which he had upon or against the same, save and except his claim or claims in the form of “book accounts,” and these he expressly excepted and reserved. We cannot affirm the conclusion of the court below that the entries found in the small book kept by Mr. Singer amounted to a book account, or as coming within the exception made in the instrument before mentioned, even if it could be held that this plaintiff is entitled to a most liberal construction of the words “book accounts,” as therein used. And it is very obvious that without a history of the land transaction, as the same was related on the trial by the witness Buck, no one would have suspected that either of those entries, save the first, whereby the fact of the sale of land, the date, and the name of the purchaser, referred to the cause of action set out in the complaint, or that the dollar mark and the figures set down underneath that entry were connected with it, or that the statement in reference to a payment by Cosgrove, had any bearing upon the sale of land to Buck, or was associated in the most remote degree with the preceding entries. These entries were nothing but memoranda of certain transactions, kept, in all probability, as an aid to the memory of the person who made them. To be sure, they were in a book, but they failed to contain a single feature or essential of a book account with or against anybody, except, possibly, an item to the credit of Cos-grove. In law, the words “book account” have a well-settled meaning,— a detailed statement, kept in a book, in the nature of debit and ■credit, between persons, arising out of contract or some fidpciary re [304] lation. See the law dictionaries. A less technical definition, given by the general lexicographers, is: An account or record of debit or credit, kept in a book. See Webst. Diet. But no definition is broad enough to include the only entries or record made by Mr. Singer as the court found the same to be. . Order reversed. ■ (Opinion published 54 N. W. Rep. 734.)