Bingham v. Blunk
| Decision Date | 24 July 1962 |
| Docket Number | No. 50657,50657 |
| Parties | Samuel R. BINGHAM, Appellee, v. Estella BLUNK and Donald Blunk, d/b/a J. C. Blunk Construction Co., St. Paul Mercury Indemnity Co., Centerville Concrete & Fuel Co., City of Centerville and Geno Sebben, Appellants. |
| Court | Iowa Supreme Court |
Life, Davis & Life, Oskaloosa, for appellants.
Goeldner & Goeldner, Sigourney, for appellee.
This is an action in equity to establish an account for machine rental and to have the account paid from public improvement funds held by defendant, City of Centerville. The real issue is between plaintiff and J. C. Blunk Construction Company, prime contractor on a street improvement project.
In April 1955 the City of Centerville contracted with Estella Blunk and Donald Blunk, a copartnership d/b/a J. C. Blunk Construction Company, to furnish specified materials and work for a street improvement project. The contract with the city has been performed and is not in issue here. From the contract price the city has retained money in double the amount of filed claims. Otherwise the contract price has been paid. The work was accepted by the city on June 5, 1956. On June 13, 1956, Samuel R. Bingham, plaintiff herein, filed with the city his verified notice of claim for service and material furnished on public improvement, pursuant to the provisions of chapter 573, Code of Iowa, I.C.A. This action in equity is brought pursuant to chapter 573, Code of Iowa, I.C.A., to adjudicate the rights of the parties to the funds retained by the city. J. C. Blunk Construction Company denies plaintiff's claim.
J. C. Blunk Construction Company sublet the work to William Seddon, d/b/a Seddon Construction Company. Plaintiff ans Seddon agree that plaintiff was hired to do certain work for which he has been paid and also that Seddon 'hired' a backhoe belonging to plaintiff at an agreed rental of $8.00 per hour. They agree that the machine was actually used 332 1/4 hours at the agreed rental, totaling $2658, with a credit due Seddon of $142.61 for gasoline furnished by Seddon. They agree that plaintiff's claim for machine rental has not been paid.
Seddon testified that he was 'boss' and supervised the work and directed Bingham 'as to when and where he would use the backhoe.' When asked how he verified the number of hours the backhoe was used, he answered, 'Well, I was there so I knew.' He testified that during the week or at various times plaintiff would present his statement showing the amount of work his backhoe had done.
An itemized statement on four sheets of paper stapled together shows the dates, hours, charges, credits, subtotals and balance due on plaintiff's claim. It bears the signature of 'Seddon Const. Co. Wm Seddon'. Seddon testified that he verified the number of hours and amount of pay that was due for the use of the backhoe and that the number of hours, rate of pay, credits and amount due were found to be correct. This statement, exhibit P-7, was identified by plaintiff as prepared from his daily time record. It was offered and received in evidence. The amount shown due on this exhibit is the same as the amount claimed in the notice of claims filed with the city.
Two small pocket notebooks about two and one-half by four inches in size were identified by plaintiff as his daily time records while working on the Centerville job. He testified they are original day-to-day records prepared each day as he went along. In addition to the notations about the use of the backhoe, the notebooks show some other writing, records, 'scribbling' and computations. These books, identified as exhibits P-8 and P-9, were offered and received in evidence.
The admission into evidence of exhibits P-7, P-8 and P-9 met strenuous objection by defendants and is the basis of this appeal. As to these exhibits the trial court commented in a written opinion:
'I have not found any error in plaintiff's figures. * * *'
The trial court found for plaintiff and established a lien in the amount claimed and directed the city to pay from the funds withheld under its contract.
Defendants Blunk appeal and urge three propositions for reversal:
'Did plaintiff by his own testimony and his offered book of account prove his book of account sufficiently to meet the requirements of Section 622.28?
'Did the evidence presented by the plaintiff qualify his alleged book of account so that it could be properly received in evidence in accordance with the provisions of Section 622.28 of the Code of Iowa [I.C.A.]?
'Could the books of account offered by the plaintiff be received in evidence, such books failing to comply with the requirements of Section 622.28 and thereby serve as sufficient proof to sustain a judgment thereon?'
The three propositions are argued together and will be so considered.
This action is in equity and triable de novo in this court, but we give weight to the trial court's decision. Citations un-necessary.
Each of appellants' propositions is bottomed on section 622.28, Code of Iowa, I.C.A. Appellants cite, quote and argue from the statute as it appeared in the 1958 Code. This case was submitted and decided in the trial court in October 1961. Formal decree was entered on November 2, 1961. Section 622.28, 1958 Code of Iowa, I.C.A., upon which defendant-appellants rely, was repealed and a substitute enacted by chapter 288, Laws of the Fifty-ninth General Assembly, effective July 4, 1961. The substitute in effect at the time of trial now appears as section 622.28, 1962 Code of Iowa, I.C.A.
The statute is as follows:
'622.28 Writing or record--when admissible--absence of record--effect. Any writing or record, whether in the form of an entry in a book, or otherwise, including electronic means and interpretations thereof, offered as memoranda or records of acts, conditions or events to prove the facts stated therein, shall be admissible as evidence if the judge finds that they were made in the regular course of a business at or about the time of the act, condition or event recorded, and that the sources of information from which made and the method and circumstances of their preparation were such as to indicate their trustworthiness, and if the judge finds that they are not excludable as evidence because of any rule of admissibility of evidence other than the hearsay rule.
'Evidence of the absence of a memorandum or record from the memoranda or records of a business of an asserted act, event or condition, shall be admissible as evidence to prove the nonoccurrence of the act or event, or the nonexistence of the condition, if the judge finds that it was in the regular course of that business to make such memoranda of all such acts, events or conditions at the time thereof or within a reasonable time...
To continue reading
Request your trial
-
State v. Hall, 52075
...there is little doubt it was not reversible error to admit the record of this phone call. Moffitt case, supra; Bingham v. Blunk, 253 Iowa 1391, 1397, 1398, 116 N.W.2d 447, 450; Ritland v. Security State Bank, 257 Iowa ---, 131 N.W.2d 464, 467, Further, admission of the phone record could ha......
-
State v. Fisher
...information indicated trustworthiness and that the exhibits were not excludable other than by the hearsay rule.' In Bingham v. Blunk, 253 Iowa 1391, 1396, 116 N.W.2d 447, 450, we again required authenticating testimony as to the accuracy of reports admitted into Support for this view is fou......
-
Kehl v. Schwendiman
...the per se hearing was held on September 6, 1983. United Securities Corp. v. Bruton, 213 A.2d 892 (D.C.App.1965); Bingham v. Blunk, 253 Iowa 1391, 116 N.W.2d 447 (1962); Alston v. Forsythe, 226 Md. 121, 172 A.2d 474 (1961) (newly adopted Rules of Evidence apply to all proceedings after thei......
-
State ex rel. Leas in Interest of O'Neal
...Moffitt Building Material Co. v. U. S. Lumber and Supply Co., 255 Iowa 765, 768, 124 N.W.2d 134, 136 (1963); Bingham v. Blunk, 253 Iowa 1391, 1396, 116 N.W.2d 447, 449 (1962). We find nothing that would so distinguish evidentiary rules governing the admissibility of allegedly privileged com......