Goff v. Stoughton State Bank

LyoN, J. I. The controlling question of fact litigated on the trial was, Did the plaintiff deposit the draft for .$38.50 with the bank to be passed to his credit, or did he receive [110] the cash therefor when he delivered it to the cashier? Upon this question the testimony is in direct conflict, and would support a verdict either way. To corroborate the testimony of its cashier that he paid plaintiff in cash for the draft, the bank was allowed to introduce testimony tending to prove that, at the close of its business on April 9th, its cash account and actual cash on hand balanced, and that this could not have occurred unless the amount of the draft had been paid to plaintiff on that day. The admission of such testimony is alleged as error. It appears by the testimony of the cashier and bookkeeper that no entry in respect to the draft was made in the books of the bank when the plaintiff delivered the same to the cashier. It will be assumed, although the testimony is quite confused and unsatisfactory on the subject, that, when the accounts of the transactions of that day were made up after banking hours, the draft was entered in a book called the “remittance register,” and posted from that book into the cash account. The entry in the remittance register is entirely consistent with either theory of the case. It would have been so entered whether the plaintiff was paid the cash therefor or not. The posting of the amount of the draft from such register into the cash account would have necessarily disturbed the cash balance for the day, if the money had not been paid out for the draft, provided all other transactions of the bank on that day were accurately entered in the cash account. In that case cash would be credited with $38.50, which had not been paid out, and there would have been a discrepancy to that amount between the cash account and actual cash — the latter being just the amount of the draft too large. Hence a very persuasive argument in support of the defendant’s theory of the case can be based upon the alleged fact that the cash account and actual cash balanced on April [111] 9th. The testimony of such balance is therefore, or may be, important in the case, and, if improperly admitted, the error is material, and necessarily fatal to the judgment. But little testimony was given concerning specific items of the cash account, but the testimony went mainly to the absence of entries therein showing that the draft in question was to be passed to the credit of plaintiff, and to the general fact that the cash substantially balanced on that day. It appears affirmatively by the testimony of the cashier that the cash account contained no entry showing-payment of the amount of the draft to the plaintiff. When asked if he had any record of such payment, he replied: “ I have no record of it at all more than this — I paid it.” We do not doubt that any entries or transactions of the parties, or either of them, in respect to the draft which pertain to the res gestw may properly be proved by either party, but under the circumstances of this case, as above stated, we do not think it competent for the defendant to prove its own acts in respect thereto, unless such acts are part of the res gestm. We can conceive of no other valid ground for the admission of such proof. The draft was delivered to the cashier early in the day, and numerous transactions between the bank and other parties intervened before the cash was made up after banking hours. When the entries were made in the cash-book and the cash was balanced the plaintiff was not present and had no knowledge of the processes by which such balance was reached. It cannot properly be, said, therefore, that these processes pertained to the res gestee. In Sorenson v. Dundas, 42 Wis. 642, Ryan, C. J., said: “ A meeting material to the issue took place between the parties. The court below permitted the respondent to testify in chief, in his own behalf, to an account of the meeting which he gave to strangers after it had ended and the parties had finally separated. This was [112] not part of tbe transaction, but a subsequent narrative of it. Declarations are verbal parts of the res gestee only when they are contemporaneous. The respondent’s narrative after the occurrence belonged no more to the res gestee than his evidence on the trial. It is too clearly inadmissible for discussion. 1 G-reenl. Ev. § 110.” In the application of the rule, no difference is perceived between verbal and written statements of a party. We have here written statements made too late to be regarded as of the res gestee. We think the case is ruled by Sorenson v. Dundas, and hence that the testimony under consideration was improperly admitted. For this error the judgment must be reversed. 2. The books of the bank were not put in evidence, but, as we understand the case, the witnesses only resorted to certain entries therein, and to the general result deduced from all the entries, as memoranda for the purpose of refreshing their recollections of the transactions in question. We are not therefore called upon to determine whether such books would have been competent evidence for any purpose, or to what extent and for what purposes they might be used as evidence if admissible. 3. The court refused to instruct the jury, as requested by plaintiff, that the burden was upon the defendant to prove it paid for the draft. The plaintiff testified in his own behalf, when proving his side of the case, that he never received the money for the draft. He thus took upon himself the burden of proof, showing prima facie that he had not been paid for the draft, and the instruction became unnecessary, assuming it to be correct as an abstract proposition of law. See Spaulding v. C. & N. W. R. Co. 33 Wis. 582. The court instructed the jury that, in the absence of any other proof, the presumption would be that the draft was paid for when delivered to the bank. This instruction was based upon an hypothesis not in the case, for there [113] was other proof on the subject. It were better had the instruction been omitted. We determine no rule of presumption in the present case. By the Oourt.— The judgment of the circuit court is reversed, and the cause will be remanded for a new trial.