Berry v. Keith
| Decision Date | 25 November 1953 |
| Docket Number | No. 1388.,1388. |
| Citation | 100 A.2d 831 |
| Parties | BERRY v. KEITH. |
| Court | D.C. Court of Appeals |
Before CAYTON, Chief Judge, and HOOD and QUINN, Associate Judges.
This case was previously before us in Keith v. Berry, D.C.Mun.App., 64 A.2d 300. It involves an action by Mrs. Keith to recover $515 allegedly deposited with appellant toward the purchase of a house. On the previous appeal, we reversed and awarded a new trial to Mrs. Keith.
The evidence adduced at the second trial was as follows: Mrs. Keith testified that she gave Berry, a real estate broker, $865 over a period of months, and made 19 payments in all. It was understood between the parties that this money was to be held by Berry until such time as he could find a house for her to purchase. In July, 1946, Mrs. Keith signed a contract with Berry to purchase a house owned by one Holmes. Upon further inspection she decided that the house was unsuitable and so informed Berry. She testified that Berry advised her that the sales contract would be torn up and she would be under no obligation to buy. She then informed Berry that she was going to buy another house and requested the return of the money that he was holding for her. She returned to Berry the 19 receipts allegedly given her, and he promised to return her money the next day. Several days later he came to Mrs. Keith's home and handed her a "check" for $600, and she signed three folded papers. Subsequent inspection showed the instrument to be a note, not a check. Since that time Berry has repaid to her $350, and in this action she claims the balance of $515.
Berry's testimony contradicted that of Mrs. Keith in almost every material respect He said that she gave him $605, not $865, and that this sum was paid in 14 payments, not 19 payments as testified to by her. He also denied that he told her that the note he gave her was a check, or that she signed any papers at that time other than a release. The release in question was introduced into evidence. He testified that the sales contract with Holmes provided for a $200 deposit, and this sum was applied for that purpose from the funds he had already received from Mrs. Keith. He said this deposit was forfeited by the action of the seller, and not by any action on his part. He received $50 as his share of the forfeiture. He said that he informed Mrs. Keith that he was agent for both her and the seller, Holmes. Mrs. Keith denied ever being informed of this.
On the first appeal we reversed on the ground that Berry had violated his fiduciary position as agent for Mrs. Keith by initiating the forfeiture of her $200 deposit. We held that it was not the function a an agent to forfeit his principal's deposit and gain a monetary advantage for himself by such action.
On this appeal there are six assignments of error. Only four merit discussion. The first has to do with the admission into evidence of the "day book" kept by Mrs. Keith in which she listed the date and amount of each payment made to Berry. It is contended that such book was not admissible because it was not kept in the regular course of business. Appellant is in error when he attempts to apply the Federal Shop Book Rule to this evidence. Actually it was merely the admission into evidence of a past recorded recollection. It is well settled in this jurisdiction that a document containing entries made by a witness in the past, of which he has no present recollection, but which he knew to be true and accurate at the time they were made, is admissible into evidence.1
Mrs. Keith's day book contained entries concerning 19 transactions made in 1945 and 1946. She could not be expected to remember the exact date and amount of each of these transactions. She testified that she made these entries within a few days of each payment made to Berry. This statement was corroborated by two other witnesses, who saw her make the entries. Thus, this book was admissible under the rule of past recollection recorded.
The second error assigned is that the court erred in failing to...
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