Covet v. Rogers

• Decision Date: 16 January 1911
• Citation: 84 Vt. 151,78 A. 792
• Parties: COVET v. ROGERS.
• Court: Vermont Supreme Court

78 A. 792

84 Vt. 151

COVET

v. ROGERS.

Supreme Court of Vermont. Chittenden.

Jan. 16, 1911.

Exceptions from Chittenden County Court; Zed S. Stanton, Judge.

General assumpsit in the common money counts by Addie Covey against Marshall H. Rogers. There was a verdict and judgment for plaintiff, and defendant brings exceptions. Reversed and remanded.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

C. S. Palmer, for plaintiff.

R. E. Brown and V. A. Bullard, for defendant.

MUNSON, J. The plaintiff testified regarding the matters of debt and credit between herself and the defendant without referring to any books, and at the close of her direct testimony was asked if she kept an account of what she had received, and replied that she did. Her counsel then produced three books, and asked if they were the books showing the entries to which she had testified, and she identified them as such. Counsel then offered the books in evidence "in connection with her testimony." Objection being made that they were not proper books of account, counsel added: "They are offered as memoranda—original memoranda in the books, such as they are." It was then objected, further, that they did not purport to be memoranda of any transactions with the defendant, and that they were not used by the witness as memoranda to refresh her recollection in testifying. Upon this the court inquired of plaintiff's counsel, "Then why do you need the books?" and counsel replied, "Because they are evidence." If she keeps the entries, "it is evidence of their understanding as to the agreement. It is original evidence for that purpose, and with reference to her testimony." The court thereupon received the books, and in taking an exception defendant's counsel said: "I understand they are offered as evidence in chief." To this plaintiff's counsel made no reply. Upon this statement we think it must be considered that the books were offered and received as independent evidence.

The first exhibit is contained in a diary on pages having the printed heading "Cash Account." The other exhibits are in blank memorandum books. In all of them the amounts are entered in columns under the headings "Received" and "Paid." The entries are not in the ordinary form of book account entries. The items are without the usual signs of debit and credit. There is nothing to connect the defendant with the transactions represented. For anything that appears, the several items may represent transactions with as many different persons. Considered as anything more than a cash account, the entries are meaningless, until explained by the testimony of the person who kept them. They must be regarded as mere private memoranda, available in aid of the recollection, and as confirmatory of the testimony given, but not entitled to use as direct evidence against the party sought to be charged.

The defendant moved for the direction of a verdict on the ground that there was no evidence tending to show either an express promise...