Booker v. Benson Hardware Co.

• Decision Date: 12 May 1927
• Docket Number: 3 Div. 796
• Citation: 113 So. 256,216 Ala. 398
• Parties: BOOKER v. BENSON HARDWARE CO.
• Court: Alabama Supreme Court

113 So. 256

216 Ala. 398

BOOKER v. BENSON HARDWARE CO.

3 Div. 796

Supreme Court of Alabama

May 12, 1927

Rehearing Denied June 15, 1927

Appeal from Circuit Court, Escambia County; John D. Leigh, Judge.

Action on account by the Benson Hardware Company against C.C Booker. From a judgment for plaintiff, defendant appeals. Transferred from the Court of Appeals under Code 1923, § 7326. Reversed and remanded.

A Whaley, of Andalusia, for appellant.

Hamilton & Caffey, of Brewton, for appellee.

BOULDIN J.

The action is upon an account of a retail merchant, brought by an assignee of the account. The pleas were in short by consent. The plaintiff filed with the complaint an itemized and verified statement of the account, and defendant a counter affidavit denying its correctness and his liability as to the whole amount thereof. Code, § 7666.

Several assignments of error go to the ruling of the court admitting in evidence the account book of the merchant.

In Loveman, Joseph & Loeb v. McQueen, 203 Ala. 280, 82 So. 530, this court construed Code of 1907, § 4003, touching the admission of books of account, in the light of the rule theretofore in force and decisions of the state of Georgia from which our statute was taken. Difficulties were there pointed out as to the rules at common law, and still retained in the statute.

In the Code of 1923, § 7701, subdivision 3 of the former statute was entirely rewritten in the following language:

"When any party or interested person, manager or other official of any association or company, testifies to his or their account book and the items therein contained, that the same is a book of original entries, and that the entries therein are true and just, and were made by himself or his employé, deceased or living, in the usual course of trade and of his duty or employment to the party so testifying thereupon the said account book and entries shall be admitted as prima facie evidence in the case upon the matters as shown by said account book."

Subdivision 4 was added covering accounts entered by a bookkeeper from salesmen's memoranda, and subdivision 5, providing for secondary evidence in case of the loss of the books of original entry.

Under subdivision 3, as now amended, the merchant, his manager, or an officer of a company, may give the evidence prescribed although the entries were made by his employees. Although he is required to testify that the entries are just and true, the further terms of the statute imply that it is not necessary that the witness shall have personal knowledge or memory of the actual sales and the prices set down. He must know that it is a book of original entry, was kept in due course of business by those charged with that duty, and that the account is correct upon knowledge, information, and belief. It commits the conscience of the witness to the genuineness and correctness of the account kept in due course of business. Upon such evidence the book of original entry becomes prima facie evidence of the correctness of the account. It is not necessary...