Estate of Wallschlaeger

Eschwéiler, J. The testimony on the first hearing and as recited above was clearly insufficient to support a finding of a four thousand dollar liability of the estate. The alleg-ed statements of deceased were too vague and indefinite; too uncertain as to whether made after the deal was consummated and therefore relating to a determined fact, or whether as to mere prior negotiations which would have been merged into or been dropped out of the final contract or as to an understanding made or reached at the time of the cross-conveyances of November 1, 1922. Neither can the claim be maintained by the evidence presented on the renewed hearing nearly a year afterwards when the $7,000 note of February, 1910, first comes into the case. On its face, under the statute it was outlawed prior to the deal of November 1, 1922, and in any event was not then surrendered, canceled, or indorsed in any manner, and remained with deceased, and no claim was asserted on it as against the claimant and on behalf of the estate. The claimant offered certain books of account kept by him in the summer-resort business, which was conducted as a partnership affair by the two brothers. He made the usual form of proof required as to the entries therein as books of account under sec. 4186, Stats, (now sub. (1), sec. 327.24). Sufficient objections were interposed to the competency of the witness and to the items themselves to present the points upon which we now rule. These books showed entries from year to year between 1914 and 1923 of the profit to which each partner was respectively entitled from that business, amounting to a few hundred dollars each year, except that the last entry indicated a loss. [645] In addition to such annual statements there were received in evidence as under date of December 14, 1924 (being the time when deceased came back into the state and went onto the farm), the following: “A. G. Wallschlaeger, Dr. $3,702.02.” On the other side, " A. L. W., Cr. $3,702.02.” These were followed by this: “A. G. Wallschlaeger conveys by deed an undivided one-half interest to all real estate and personal property belonging to Rost Lake Summer Resort, and both parties agree to continue in business jointly, sharing all profits and losses since Jan. 1, 1914, equally. Consideration is indicated above. A. L. Wallschlaeger assumes all liabilities jointly with A. G. Wallschlaeger as shown by the books of this company.” Another item as of November 1, 1922 (the date of the deeds), was: “Nov. 1st. A. L. W. Dr. $4,000 to A. G. W. Cr. $4,000. A. L. Wallschlaeger and wife transfer their undivided one-half interest in the Rost Lake Summer Resort by deed for a consideration of $4,000, which said amount paid by A. G. Wallschlaeger accepting same as part payment for 160-acre farm deeded to A. L. Wallschlaeger.” The objection to this last item was subsequently apparently sustained after direct and cross-examination of the claimant regarding it. None of the items in these books should have been received, for several reasons. The liability here sought to be asserted was for an alleged balance due for the purchase price of the 160-acre farm. Books of account under sec. 4186, Stats, (now sub. (1), sec. 327.24), when properly proven, are admissible to show charges for goods or other articles delivered, work, labor, and services performed- or materials furnished, but not to establish such a transaction as is here involved. These were offered as books of account and plainly as those under said sec. 4186, supra, rather than as entries in [646] a book other than account or bank books, such as is mentioned in sec. 4189 (now sec. 327.25, Stats.), for they cannot be admissible under both statutes, as was directly so held in Dohmen v. Estate of Blum, 137 Wis. 560, 562, 119 N. W. 349. The two items quoted above of December, 1914, and November 1, 1922, respectively, as to the beginning and the end of the partnership in the summer resort were recitals of the terms of alleged contracts rather than the entries intended by either of the two statutes above quoted. The situation in that regard is just like that shown' in Hazer v. Streich, 92 Wis. 505, 66 N. W. 720, where, in the presence of both parties, defendant’s wife wrote in his ledger the memorandum of the exchange of a lot of oak for other personal property, and such item was there held inadmissible as independent or original evidence although it might be used to refresh the recollection of some third person also then present and knowing of its being in accord with the contract. Though such a memorandum might be used to refresh the recollection of a witness presently competent to testify to the transaction involved, as also held in Schettler v. Jones, 20 Wis. 412, 417, and Campbell v. Germania F. Ins. Co. 163 Wis. 329, 338, 158 N. W.. 63, yet such a memorandum cannot be used by one party to an alleged transaction, the other party thereto being now deceased, over such objections as were here interposed to the competency of the witness. It was so held in Dohmen v. Estate of Blum, 137 Wis. 560, 562, 119 N. W. 349, supra, where the subject is fully discussed and a rule declared from which we see no reason to depart. Furthermore, the books of account did not involve, so far as the record before us discloses, the transactions between the two brothers in the carrying on of the farm, which was sejparate and distinct from the summer resort. Neither did [647] the entries, even if admissible, establish that the deceased owed claimant $4,000. There being no sufficient evidence in the record for the court’s findings, the claim for $4,000 must therefore be disallowed. By the Court. — Judgment reversed, with directions to disallow the claim.