MacKenzie v. Barrett

Mr. Presiding Justice Adams delivered the opinion of the court. Counsel for appellant contend that there was no competent evidence in support of appellee’s claim, objecting specifically to the checks and stubs as evidence of loans by the appellee to Miss Barrett, the appellant’s intestate. A check on a bank is not evidence of indebtedness of the payee to the drawer of the check. On the contrary, it is evidence of the indebtedness of the drawer to the payee. Chestnut v. Chestnut, 15 Ill. App. 390, 392. If such a check is not paid when presented for payment, for want of funds of the drawer, and if the payee, in a suit by him against the drawer, proves these facts, a prima facie case is made for a recovery. The checks, therefore, standing alone, are no evidence of loans by appellee to the deceased. Are the notations on the stubs of the checks, assuming them to have been made at the same times as the checks, and taking them in connection with the checks, evidence of loans by appellee to the deceased? It would seem that the stubs are no stronger evidence than entries in appellee’s books of loans to the deceased of the several sums for which the checks were given, made at the same times at which the checks were given. Such entries of charges for money loaned would not be evidence. Boyer v. Sweet, 3 Scam. 119; Ruggles v Gatton, 50 Ill. 412; Schwarze v. Roessler, 40 Ill. App. 475; Smith v. Rentz, 131 N. Y. 169, 176. In Boyer v. Sweet the court, after stating the rule as to the admission of books of account as evidence, say: “This rule would not apply to an account for money lent, as that is not usually the subject matter of an account, notes being generally taken, nor to an account certain—a single charge only, as that would show no re¿’ :ar dealings between the parties.” In Ruggles v. Gatton, supra, the court, p. 416, refer to the above quoted language approvingly. In Smith v. Rentz, 131 N. Y. p. 176, the court say: “Moreover, entries of cash transactions may be fabricated with much greater safety and with less chance of the fraud being discovered than entries of goods sold or delivered, or of services rendered. It would be unwise to extend the operation of the rule admitting a party’s books in evidence, beyond its present limits, as would be the case, we think, if books containing cash dealings were held to be competent.” The words on the stubs of the checks for $300 and $100 are ambiguous. They are, “Order of A. A. Barrett for loan.” These words may import a loan from Miss Barrett to the appellee as well as a loan from him to her. In the present case a book of appellee’s which Miss Brennan testified contained the entries of cash payments made in the regular course of business, was put in evidence. For what purpose it was admitted, we do not know, as it was stipulated in open court, on the trial, that it contained no entries of any sums evidenced by the checks. As appellant defended as administrator, appellee was excluded from testifying by section 2 of the statute in respect to evidence; but if, as he claims, the checks were for loans to the deceased, he had ample time in which to secure acknowledgment of this from the deceased, as by notes, or other written evidence, Miss Barrett left his employ in the latter part of January, 1906, from sickness, as we infer from the evidence, and went to a hospital, and did not die till July 13, 1906, and the checks are dated, respectively, September 4, 1905, November 4, 1905, and February 21, 1906. The appellee’s counsel contend that the stubs are admissible as res gestae. They are no more res gestae than would be entries in appellee’s books made at the very time the checks were written. But, in view of the law in respect to books of account as evidence, such entries would be inadmissible. It is desirable that the law shall be consistent. The evidence is, we think, sufficient to prove that check No. 1707 to the order of the Aetna Life Insuranee Company, was received by that company in payment of the premium on a policy on the life of Miss A. A. Barrett. The policy was not produced, nor is there any evidence of its contents or for whose benefit it was, or by whom it was held. There is no evidence of any request of the deceased to appellee to pay the premium, or of any obligation resting on him to pay it. It was, so far as appears from the evidence, a voluntary payment by appellee. We do not understand that one can make another his debtor without the latter’s request or consent. If it be said that the payment was for Miss Barrett’s benefit, the answer is that this is not shown by the evidence. It was objected to the receipt as evidence, that there was no evidence that Miss Barrett had authorized appellee to make the payment. Appellee relies on the testimony of Miss Brennan, that the deceased said to her that appellee had been exceedingly kind to her, that he had not only paid her salary constantly, but had advanced her considerable in addition to it. Neither time nor circumstance nor amount was stated. The statement may have been strictly true, and yet have had no reference to any item of the claim in question. The appellee has assigned, as cross-error, the ruling of the court against the admission in evidence of the following letter offered in evidence by appellee: “South Haven, Michigan, August 7. Dear Mr. Mackenzie : You must think I have deserted you, but I have been over here answering all the letters to Anna’s friends, as it is a nice, quiet place. I am coming home tomorrow, as I go into the hospital in about a week. Our lawyer won’t allow me to settle any of Anna’s accounts except those that have been made since her death, such as the undertaker and so forth. He says the court has to know about them or I may get into trouble. I wish we could settle it all now, as it is a shame to keep you waiting for your money. There are other bills coming that I can not settle, such as Marshall Field’s, and also a dressmaker’s bill that she refused to pay. I am going into the hospital in a short time, but I will drop in and see you as soon as I return. Hoping you are well and happy, I am, Tour sincere friend,' Fred T. Barrett.” The letter was written subsequently to the appointment of appellant as administrator and prior to the filing of appellee’s claim against the estate. It is urged that the letter is an admission by the appellant, as administrator, and is competent evidence, and cases in other jurisdictions are cited to the effect that the admissions of administrators, in their respective capacity, are admissible in suits against them. The letter was written prior to the filing of appellee’s claim and does not indicate that appellant knew just what the claim was, but only that appellee claimed that the estate owed him something, and there is a refusal to settle anything with appellee before the court’s action in the premises. We do not think the court erred in ruling against the admission of the letter in evidence. We are impressed with the view, that if all the facts could have been proven in regard to the items of the claim, which was perhaps impossible owing to the exclusion of appellant’s testimony by the statute, the justice of the claim might have been shown. But we are limited to passing on the competency and sufficiency of the evidence in the record, and cannot escape the conclusion that the claim has not been proven, and that the court erred in its finding. The judgment will be reversed and judgment will be entered here that appellee’s claim be disallowed and dismissed. Reversed, and judgment here.