Fritz v. Burgiss

• Decision Date: 26 March 1894
• Citation: 19 S.E. 304,41 S.C. 149
• Parties: FRITZ v. BURGISS.
• Court: South Carolina Supreme Court

19 S.E. 304

41 S.C. 149

FRITZ

v.BURGISS.

Supreme Court of South Carolina.

March 26, 1894.

Witness—Refreshing Memory.

A manager of a firm's business, as a witness, cannot refresh his memory as to an indebtedness to the firm from its account books, when he did not make the entries, or see them made, nor assure himself of their correctness when the matters were fresh in his memory.

Appeal from common pleas circuit court of Greenville county; J. J. Norton, Judge.

Action by Horace H. Fritz, assignee of Joseph H. Coates & Co., against W. W. Bur-giss, on an account. From a judgment for defendant, plaintiff appeals. Affirmed.

J. C. Jefferies, for appellant

Haynsworth & Parker, for respondent

McGOWAN, J. This was an action on an account against the defendant, tried before his honor, Judge Norton, and a jury, July 24, 1893. The complaint alleged an indebtedness of $364.76, due to plaintiff as assignee of Joseph H. Coates & Co. (The account itemized is in the record.) The answer was a general denial. It appeared that Joseph H. Coates & Co. were in the cotton business in the city of Savannah at the time the account was contracted; that they failed, and made an assignment for the benefit of their creditors, to the plaintiff, Horace H. Fritz, which assignment included the claim on account now in question, and he brought this action to recover it. In the course of the trial the plaintiff opened a commission which had been Issued to examine, among other witnesses, R. W. Gamble, who represented Joseph H. Coates & Co., doing the business in their name under power of attorney. When the reading of the interrogatories and answers of the said Gamble had reached the seventh Interrogatory, Mr. Haynsworth objected thereto, and the answer, on the grounds that witness got his information from "the books kept by Charles E. Williams, and does not state that he had independent knowledge of them at the time, and that he could not state of his own knowledge." "The Court: The rule is that a witness may refresh his memory from any memorandum that he made, or that he saw made, or knew to be correct; but, unless it is a writing of that kind, I don't think he can use it, and I don't think the testimony here comes up to the requirements. (Plaintiff excepts.) Mr. Jefferies: Will your honor allow such portions of that question to remain that go to show the indebtedness? The Court: The testimony objected to was the statement of the witness that the defendant hgre was indebted to the assignees to a certain amount The knowledge of that indebtedness arose, as the evidence of the witness shows, and was derived from the books. The books were not produced in evidence, and it was not shown that the person who gave the information did not keep the books; but, on the contrary, one Williams kept the books, and it is not shown that he had a knowledge of the entries when they were made, and that they were made; and upon that statement by Mr. Haynsworth I ruled that he could not testify as to his sources of information. Mr. Jefferies: Does that shut me out from bringing out from him what he knows in his own mind, independent of the books? The Court: No, sir; I think not It seems to me that it is about as responsive an answer as you can get even if you had the witness on the stand. The testimony in response to the cross interrogatory may be admitted. The answer to the seventh interrogatory was not admitted, on the ground that the witness' knowledge ofthe facts to which he testified was derived from the books, " etc. The trial proceeded. The defendant waived proof of partnership of Joseph H. Coates & Co., and proof of the execution of the assignment, and admitted that R. W. Gamble was general agent of Joseph H. Coates & Co. The defendant offered evidence denying the truth of the testimony contained in the depositions of R. W. Gamble and Charles E....