140 F.2d 13 (D.C. Cir. 1944), 8414, Shokuwan Shimabukuro v. Higeyoshi Nagayama

Docket Nº:8414.
Citation:140 F.2d 13
Party Name:SHOKUWAN SHIMABUKURO v. HIGEYOSHI NAGAYAMA.
Case Date:January 03, 1944
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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140 F.2d 13 (D.C. Cir. 1944)

SHOKUWAN SHIMABUKURO

v.

HIGEYOSHI NAGAYAMA.

No. 8414.

United States Court of Appeals, District of Columbia.

January 3, 1944

Argued Nov. 4, 1943.

Mr. John Wattawa, of Washington, D.C., with whom Mr. Vivian O. Hill, of Washington, D.C., was on the brief, for appellant.

Mr. Richard E. Wellford, of Washington, D.C., with whom Mr. Simon R. Golibart, of Washington, D.C., was on the brief, for appellee.

Before GRONER, Chief Justice, and MILLER and ARNOLD, Associate justices.

ARNOLD, Associate Justice.

This is an action to recover $3,935.60 alleged to have been advanced to defendant below by plaintiff below. Plaintiff conducted a hairdressing school in Washington. Prior to June, 1932, he read in the paper that defendant was about to receive a large legacy. Shortly after that, according to plaintiff's testimony, defendant came to plaintiff's shop and asked for a series of small cash loans, all of which he promised to repay with interest when the legacy was received. Pursuant to this arrangement (again according to plaintiff's testimony) he advanced to defendant a succession of small sums from day to day at his shop during a period of five years from June, 1932, to October, 1937, amounting to a total of $4,255.60. He admits payment of $320 on this account.

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Defendant admitted that he had borrowed small sums from the plaintiff; but testified that the total amount due had never been more than $250, which he paid in full with interest. To prove payment, defendant introduced a check for $300 endorsed by plaintiff in full settlement of the account. Plaintiff denied that the statement as to settlement was on the back of the check when he signed it.

The only evidence of sums loaned to defendant above the amount which was repaid consists in entires on nine sheets of scrap paper. There are 384 such entries showing small items ranging from $2 to $20, together with dates. The sheets are full of erasures and corrections. Before introducing these sheets in evidence plaintiff testified that he had no recollection of the truth of any of the entries. He stated, however, that each entry was made at the time of the cash loan which it represented or within a day thereafter, and that he knew that the entries were true when made.

Each of the pencilled sheets covers a period of several months. A handwriting expert testified that the character and alignment of the writing shows that the entries were not made from day to day, as plaintiff testified, but at a single sitting. An examination of the sheets themselves tends to corroborate this expert testimony.

Testimony which is neither contradicted nor impeached shows that a series of cash advances shown on the memoranda for June, July and August, 1936, could not have been made in the way plaintiff testified. It establishes that defendant took an extended trip in the West during those months. This testimony also creates a strong inference against the credibility of the sheets for the previous year of 1935. No items of loans appear during June, July and August of that year. Such a coincidence is difficult to explain except on the theory that the memoranda were prepared at a time when plaintiff had forgotten the year of defendant's trip.

The credibility of the entire set of records is further shaken by the fact that prior to filing suit, instead of making a demand for payment, plaintiff wrote the defendant asking for money which he promises in the letter to repay. No indebtedness from defendant is mentioned; the letter goes into detail about the financial difficulties of plaintiff and explains the sources of income from which he expects to repay the defendant. It was written at a time when plaintiff would have us believe defendant owed him about $4,000. No explanation of this letter is offered which is consistent with the existence of indebtedness from defendant to plaintiff. It was suggested that some peculiar Japanese convention of politeness between the debtor and creditor required plaintiff to promise to repay collections which he received on account of the debt, but the record contains no evidence to support the existence of such an extraordinary oriental custom.

At the trial, counsel for plaintiff in cross-examining witnesses for the defendant emphasized the irrelevant fact that the defendant, a Japanese, was an aviator. Further questions raising the prejudicial inference that defendant, a Japanese, had taken a trip with the daughter of one of the American witnesses compelled the court to reprimand counsel.

On the face of this record the court instructed the jury in effect that they could pick and choose among the 384 items entered on the nine pencilled sheets, rejecting those items they believed to be false or not made contemporaneously with the loan, and accepting the balance. After retiring, the jury requested further information on their power to accept or reject items and were again told without qualification that they could pick and choose among the entries. Apparently acting on this instruction the jury brought in a verdict for $1,000,-- an amount which cannot be supported on any plausible theory of the evidence.

Had proper objection been made, the...

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