Crosby v. Little River Sand & Gravel Development

• Decision Date: 26 May 1947
• Docket Number: 37638.
• Citation: Crosby v. Little River Sand & Gravel Development, 31 So.2d 226, 212 La. 1 (La. 1947)
• Court: Louisiana Supreme Court
• Parties: CROSBY v. LITTLE RIVER SAND & GRAVEL DEVELOPMENT et al.

31 So.2d 226

212 La. 1

CROSBY v. LITTLE RIVER SAND & GRAVEL DEVELOPMENT et al.

No. 37638.

Supreme Court of Louisiana

May 26, 1947

Rehearing Denied June 16, 1947.

Appeal from First Judicial District Court, Parish of Caddo; E. P. Mills, Judge.

B F. Roberts and Albert P. Garland, both of Sheveport, for defendants-appellants.

Bullock & Bullock, of Sheveport, for plaintiff-appellee.

HAWTHORNE Justice.

Plaintiff Joe H. Crosby, liquidator of the Modern Iron Works, Inc. instituted this suit against the defendants, Little River Sand and Gravel Development et al., praying for judgment in the sum of $4,211.79, with legal interest from judicial demand, alleging that the defendants owed this amount as balance for labor and materials used in building and constructing for defendants a tugboat and a barge and overhauling and repairing a dragline and a claim shell bucket, all in accordance with an itemized statement attached to, and made part of, his petition.

Plaintiff caused a writ of sequestration to issue, and under this writ the barge constructed by plaintiff for defendants was seized. In due course defendants obtained the release of this barge from the seizure by executing bond in the sum of $4,500.

Defendants in their answer denied each and every item of the account and demanded strict proof thereof. They alleged that plaintiff had agreed to furnish the labor for the work at actual cost to him, plus $3 per hour for the services of a shop foreman for actual time spent on such work, and the cost of any material purchased by plaintiff, plus 10 per cent of the price of such material, and that plaintiff had agreed to complete the work within a period of six months.

Defendants further alleged that plaintiff had not performed the work in a satisfactory manner, and that his delay in performing such work and delivering the equipment to defendants had caused them to be damaged in the sum of $20,114.12. They prayed for judgment in this amount in reconvention.

During the progress of the trial, however, defendants entered a voluntary nonsuit as to all reconventional demands except the one for the sum of $2,327.19, which they alleged was paid by them to a third party for rent of a dragline because of the unsatisfactory work and delayed delivery of the dragline which plaintiff was to overhaul and repair for them.

The district court rendered judgment in favor of plaintiff and against defendants, Little River Sand and Gravel Development, Sidney G. Myers, Joseph G. Sellwood, and Richard M. Sellwood, Jr., as commercial partners, individually and in solido, for the full amount of plaintiff's claim, plus interest and costs; maintaining the writ of sequestration issued herein and with full recognition of plaintiff's lien and privilege on the property sequestered thereunder, and rejecting defendants' reconventional demand. From this judgment all defendants have appealed.

Of the total amount of the account sued on, approximately $600 was for freight, express, materials, etc., paid by plaintiff for the account of the defendants, the largest of these items being freight for approximately $300. Defendants do not deny the correctness of these charges, but on the contrary admit in argument before this court that they are due. However, they do seriously contest the correctness of the amount charged for labor, which is a sum in excess of $3,600.

The amount which plaintiff claims for labor is evidenced by documents called 'job sheets', which were introduced and filed in evidence in the lower court. To these documents defendants' counsel objected for the reason that they were hearsay and were not properly proved and were an attempt on the part of the plaintiff to prove an open account in globo without giving the items as to dates and amounts.

The evidence discloses that the Modern Iron Works, Inc., of which plaintiff Crosby is the liquidator, is a machine shop situated in the City of Shreveport and is engaged principally in the repairing of machinery.

In keeping the time of the various employees, plaintiff used a time clock system, and each employee had a weekly time card which was punched to show his actual working hours. From these time cards each employee was paid his hourly rate according to the number of hours which he may have worked in any one week at plaintiff's plant.

Plaintiff also used another card very similar in appearance, designated as the 'job card'. Each job was given a number, and these job cards indicated the actual hours an employee worked on any particular job, giving the name of the employee and class of work performed by him, such as welding, etc. When the worker was assigned to a particular job, his job card was punched at the time clock, and, at the completion of his work on the job to which he had been assigned, his job card was again punched at the same clock to show the actual number of hours which he worked on the particular job to which he was assigned. The worker was then given another assignment and another job card. By this system, plaintiff had not only the number of hours each employee worked, as shown by the time cards which were used for payroll purposes and for computing social security and insurance, but also the job cards, which showed the number of hours the same employee had worked on any particular job. It was necessary for each worker's time card and his job card to balance or tally at the end of each day, so as to show no discrepancy with regard to the number of hours worked by him during that day.

Plaintiff and his superintendent, J. W. Fort, kept the time of each employee, and these time and job cards were under their sole supervision and control. At the end of each day the job cards were delivered to the office, and from these cards the 'job sheets' were made up. These job sheets also showed the name, initials, or nickname of every man who worked on the particular job, the number of hours he worked thereon, and his rate of pay per hour. These job sheets were made up from day to day as the labor was expended. The information shown on each job card was posted on the job sheet under the supervision of Crosby, who thereafter checked each job sheet to ascertain whether it was correct and indicated the correctness by initialing each job sheet in the corner.

From these job sheets the invoices on each particular job performed by plaintiff for defendants, such as the amount due on the tugboat, the barge, etc., were made up, as well as the itemized account attached to plaintiff's petition.

Plaintiff at no time offered in evidence the job cards themselves, stating that it was not his custom or practice to keep the job cards on any particular job, and that, soon after the information contained on the job cards was posted to the job sheets, the job cards were destroyed, and that it was for this reason that they were not available. The accountant who was head of plaintiff's bookkeeping department corroborated plaintiff's testimony as to his practice and custom of destroying these cards.

The record shows that some of the machine shops in the Shreveport area did preserve their job cards. Although in our opinion it would be better to keep such cards in order to avoid litigation such as this, it apparently was not the custom of all machine shops in this area to keep these cards.

The...