Bartolucci v. Dal Bianco

Mr. Justice O’Connor delivered the opinion of the court. Plaintiff brought suit against the defendants to recover $836.74 fbr work and labor which he claimed he had performed for them, aggregating 2,047 hours. There was a trial before the court without a jury and a finding and judgment in plaintiff’s favor for $536.74, to reverse which defendants. prosecute this appeal. The record discloses that the defendants conducted a small grocery store in Chicago and occupied the rooms in the rear of the store as a residence. On the lot back of the store building was a shed in which plaintiff at times repaired shoes for a livelihood. He also worked for the Pullman Company. The plaintiff offered evidence tending to-show that at the request of the defendants he rendered services in and about the grocery store and residence of the defendants for which services they agreed to pay him the same rate of wages as he was receiving from the Pullman Company; that he began to work for the defendants June 19, 1917, and worked off and on until February 10, 1919, for which services he had received no pay from the defendants; that from time to time during this period he would go back and work for the Pullman Company and then return and work for defendants. Plaintiff testified in his own behalf that he could not read or write but that a friend of his, Romano Spalciero (who at one place in the testimony appears to have been called Roman Bartelli) at plaintiff’s request made a written memorandum every evening of the number of hours plaintiff worked for the defendants; that after work each day he would tell his friend the number of hours he had worked that day for the defendants and his friend would write it down on a piece of paper. This witness testified that he had been requested by the plaintiff to make a written memorandum of the number of hours plaintiff claimed to have worked for the defendants; that on the evening of each day plaintiff told him the number of hours he had worked and the witness would write it down in Italian on a piece of paper; that afterwards on February 10, 1919, the witness copied the memoranda showing the number of hours and the nature of the work into a book which was produced in evidence; that he did not exactly copy what appeared on the slips of paper but that sometimes he would lump several days together and make one entry in the book. Over defendants’ objection this book was admitted in evidence and it is contended that this was error. We think this contention must be sustained. The statute under which it seems to be contended that this book was admissible is section 3, ch. 51, Rev. St. [Cahill’s Ill. St. ch. 51, ¶ 3]. That section provides that where in a civil suit a claim or defense is founded upon a book account, if the evidence shows that the entries made in the book are true and correct and that it is a book of original entry and that the entries were made at or about the time of the several transactions, it is competent evidence. The fact that the entries made in the book are copied from slips of paper does not render the book incompetent as not being a book of original entry. Chisholm v. Beaman Mach. Co., 160 Ill. 101. In that case it was held that in order to make a book admissible it was necessary that the entries should have been made in the ordinary course of business “and that they should have been made contemporaneously with the doing of the work, for which the charges were made” so as to form a part of the transaction. In the instant case the entries w:ere not made contemporaneously with the doing of .the work but from 18 to 20 months thereafter as to a great many of the items, and clearly under the law of this State the book was inadmissible. But it was also inadmissible for another reason, for the testimony of the witness who made the entries is, and the entries themselves show, that many of the items were lumped together; for instance, “August 10, 50 hours, 380 per hour, $19..00; August 18,100 hours’ work, 380 — $38.00; Nov. 10, 75 hours’ work, 380 per hour, $28.50; Nov. 21, 2 days, 55 hours, — 380—$20.90,” and many other items of like import. In 1 Elliott on Evidence, sec. 461, it is said: “Lump charges are a fatal objection to the admissibility of the books, for the rule is that the entries must be in such shape that they must be presumed to be the daily minutes of the party’s business and transactions. So, where a book contained but one entry, or set of entries, it was held inadmissible.” In Rumsey v. New York & N. J. Tel. Co., 49 N. J. L. 322, an action was brought for rent and service of a telephone and it appeared that the number of each service was entered at the time upon a slip and thes,e slips were sent to the main office where the gross number of calls for each month was entered in a book and the book was held to be inadmissible in evidence. To. the same effect is Cargill v. Atwood, 18. R. I. 303, where it was held that lump sums were not admissible as book accounts. The same rule was announced in the case of Bustin v. Rogers, 11 Cush. (65 Mass.) 346. In the instant case the rule which excludes the book as evidence' is a just rule because defendants both testified that plaintiff did not work for them at all except a few odd jobs for which he had been paid, and the evidence further shows without contradiction that plaintiff at different times worked for the Pullman Company and the timekeeper of that company testified at the trial to the several days on which plaintiff worked for them and which services were rendered within the period of time covered by plaintiff’s statement of claim. If the rule of law was followed by plaintiff in keeping the book in question so as to show the number of hours he claimed to have worked for defendants each day, this could be checked with the records of the Pullman Company, but since the book was not kept in the manner required by law, it is obvious that no such check could be made. But the plaintiff contends that even if the book were excluded, the judgment ought not to be disturbed because his statement of claim is also based on an account stated between the parties, and it is said that plaintiff stated on cross-examination that he knew defendants owed him $836 and that he demanded payment of this amount and defendants said that they would pay it later. It is apparent from the record that the trial judge did not believe or adopt this theory of the case because he entered judgment for $300 less than the plaintiff was seeking to recover. The judgment of the municipal court of Chicago is reversed and the cause remanded. Reversed and remanded. Thomson, P. J., and Taylor, J., concur.