Banner Grain Co. v. Burr Farmers' Elevator & Supply Co.
| Decision Date | 20 March 1925 |
| Docket Number | No. 24402.,24402. |
| Parties | BANNER GRAIN CO. v. BURR FARMERS' ELEVATOR & SUPPLY CO. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Yellow Medicine County; G. E. Qvale, Judge.
Action by the Banner Grain Company against the Burr Farmers' Elevator & Supply Company, in which defendant filed a counterclaim. Judgment for defendant, and from an order denying a motion for new trial, plaintiff appeals. New trial granted.
Fowler, Carlson, Furber & Johnson, of Minneapolis, and O. A. Lende, of Canby, for appellant.
Paul D. Stratton, of Granite Falls, and Daly & Barnard, of Renville, for respondent.
Plaintiff, a grain commission merchant of Minneapolis, brought this action against defendant, a farmers' elevator company, to collect $2,641.98 balance on account. Defendant denied the complaint, and counterclaimed for grain sold to plaintiff in the sum of $11,000. The reply pleaded payment. The case was tried to a referee, who found for defendant in the sum of $7,998.59. Plaintiff has appealed from an order denying its motion for a new trial.
Plaintiff put in evidence its account books embracing cash book, journal, and ledger, known in the record as Exhibits A, B, and C. The account with defendant included both cash grain transactions and hedging transactions. Practically all the items in the account arose out of transactions on the floor of the Chamber of Commerce. At the time plaintiff's employee made the trades, he made memoranda on trading cards or slips. At the close of the day's session these trading cards were immediately taken to the office, and from them entries were made in the day book and journal. These cards are not kept as permanent records. These memoranda or trading cards are made as a mere temporary means of securing accuracy in making the original entry in the account books, and were never intended to be preserved as the record of such sales. An effort has been made to challenge the books on the ground that they do not contain the original entry, and it is asserted that the memoranda trading cards are the original entries. This position is untenable. The account books are admissible in evidence without the production of such memoranda. Lampert Lumber Co. v. Fleisher, 142 Minn. 150, 171 N. W. 309.
In connection with the offer of the books above mentioned, plaintiff also offered in evidence a book marked Exhibit D, being a record of purchase and sale of options or futures. At the top of each page in this book is printed, "Memoranda of Trades for Account of ____," and on the leaves offered in evidence, defendant's name was written. The sheets are ruled, and the columns headed in print, viz., place, month, commodity. Then, under a general head of "Bought" are columns, "Date," "Quantity," "Price," and "No." Another general head is "Sold," with like subheadings under it. Then a column headed "Profit," and another "Loss." These last two were not used. As an illustration of entries we have: Place, Minneapolis; month, May; commodity, rye; bought, date, April 5; quantity, 5 (meaning 5,000 bushels); price, $1.80½; sold, date, April 9; quantity, 5 (meaning 5,000 bushels); price, $1.80; No. 6,465. The number identifies the customer.
This record is promptly made from the card memoranda furnished by the man on the floor of the chamber. The record book, Exhibit D, is not an account book. It is a record of the matter entered therein. It is an important record kept in the regular course of business, with entries made by those authorized to make them and at the time of the transaction. It was properly verified. It should have been received in evidence, not as an account book, but as a record. Sullivan v. Mpls. St. Ry. Co. (Minn.) 200 N. W. 922; State v. Virgens, 128 Minn. 422, 151 N. W. 190; Swedish Am. Nat. Bank v. C. B. & Q. Ry. Co., 96 Minn. 437, 105 N. W. 69; Strand v. G. N. Ry. Co., 101 Minn. 85, 111 N. W. 958, 112 N. W. 987. Its exclusion was error.
Upon the exclusion of this record, plaintiff attempted to prove its alleged hedging account by means other than by account books, and offered in evidence Exhibit G, which was a carbon copy of the written portion of a confirmation filled out on a printed blank, so that the original which plaintiff mailed to defendant in confirmation of purchase would be in substantially this form:
Banner Grain Company
Grain Commission
_______: Minneapolis, Minn
We have the pleasure of confirming the following transactions made for your account and risk to-day:
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Of Whom | Quantity. | Delivery. | Property. | Price. | Time. |
Bght. | | | | | |
--------|-----------|-----------|-----------|--------|-------|------
Carg. | 5M | July | Rye | 1.25 | 1.10 | #7350
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Confirmation of sales were made on suitable blanks of the same general character.
With Exhibit G, plaintiff offered 34 other exhibits of like character, but not a single one of all these confirmations, except Exhibit G, gave the name of the person with whom the transaction was had, nor is the place of transaction named. They do not comply with section 10491, G. S. 1923. Exhibits G1 to G55 were copies of letters from plaintiff to defendant, in which many of the confirmations were inclosed and the letters themselves disclosed transactions indicating that plaintiff was claiming to be making the deals in futures for defendant. The offer did not include any communications from defendant. Exhibits G and G1 to G55 were excluded as incompetent, irrelevant, and immaterial. These letters like the confirmations made no attempt to comply with section 10491, G. S. 1923. The referee excluded this evidence because of the failure to comply with section 10491, and did so upon authority of Bolfing v. Schoener, 144 Minn. 425, 175 N. W. 901.
The failure to comply with the statute made a prima facie case of an illegal transaction. This was sufficient to sustain the conclusion reached. This was true even though the burden of proof is upon the one who asserts the illegality of the transaction. Mohr v. Miesen, 47 Minn. 228, 49 N. W. 862; McCarthy v. Weare Commission, 87 Minn. 11, 91 N. W. 33. But the illegality of the transactions was not in issue under the...
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