Dr. R. D. Eaton Chem. Co. v. Doherty

• Decision Date: 22 June 1915
• Citation: 153 N.W. 966,31 N.D. 175
• Parties: DR. R. D. EATON CHEMICAL CO. v. DOHERTY et al.
• Court: North Dakota Supreme Court

31 N.D. 175

153 N.W. 966

DR. R. D. EATON CHEMICAL CO.

v.DOHERTY et al.

Supreme Court of North Dakota.

June 22, 1915.

Syllabus by the Court.

Plaintiff sought to recover from the defendants for the value of certain merchandise, which plaintiff claimed to have sold and delivered to the defendant Doherty under a written contract, the performance of which was guaranteed by the defendants Evoy and Coliton. One Collins, an officer of the plaintiff corporation, was permitted to testify, over objection, to his conclusions as to the value and delivery of such goods, based upon alleged entries made against Doherty in plaintiff's books of account. The books were not produced or offered in evidence, although they concededly were in the possession of the plaintiff. It is held that the testimony of Collins as to the contents of such book entries was incompetent, and should have been excluded.

For the reasons stated in the opinion, such testimony was not admissible on the theory that such books constituted memoranda used by Collins to refresh his recollection.

The books of account were the best evidence of the contents of the entries made therein.

The burden of proof was upon the plaintiff to establish the sale and delivery by it to Doherty of the goods for which recovery was sought, and also the value thereof.

For the reasons stated in the opinion, it is held that such facts were not proven by any competent evidence, and that the trial court erred in directing verdict in plaintiff's favor.

Appeal from District Court, Bottineau County; Burr, Judge.

Action by the Dr. R. D. Eaton Chemical Company against J. P. Doherty, Ed Evoy, and Steve Coliton. From a judgment for plaintiff, defendants Evoy and Coliton appeal. Reversed, and cause remanded.Soule & Cooper, of Westhope, for appellants. Weeks & Moum, of Bottineau, for respondent.

CHRISTIANSON, J.

The plaintiff is a Minnesota corporation, whose place of business is located in Minneapolis, Minn. It is engaged in the business of manufacturing and selling veterinary and other remedies. On June 3, 1910, the plaintiff entered into a written contract with the defendant J. P. Doherty, whereby the plaintiff agreed “to fill and deliver on board cars at Minneapolis, Minn., his reasonable orders, provided his account is in satisfactory condition, and to charge all goods shipped him under this contract to his account at current wholesale prices.” The defendants Ed Evoy and Steve Coliton signed a written guaranty, attached to said contract, whereby they jointly and severally guaranteed the performance by said Doherty of said contract. The plaintiff's complaint sets forth the contract and the guaranty in full, and further alleges:

“That under and pursuant to said contract the plaintiff sold and delivered to the said J. P. Doherty goods and merchandise as described in said contract on the 23d day of June, 1910, at the agreed price of four hundred sixty-six and 10/100 dollars ($466.10), and on the 2d day of July, 1910, at the agreed price of four hundred twenty-four and 60/100 dollars ($424.60), and that no part of the same has been paid, except the sum of three and 25/100 dollars paid April 15, 1910, and the sum of five and 55/100 dollars paid November 15, 1911, and the further sum of three hundred forty-one and 55/100 dollars ($341.55), paid November 30, 1912, and the further sum of one hundred dollars ($100.00) paid December 17, 1912.”

The complaint further alleges that the defendant Doherty failed to pay for said goods and merchandise, although payment was demanded from the defendants Coliton and Evoy, and that subsequently the contract with Doherty was canceled by the plaintiff on account of Doherty's failure to comply with its terms.

The defendant Doherty defaulted, and the defendants Evoy and Coliton answered, specifically denying the sale and delivery to the defendant Doherty of the goods and merchandise described in the complaint, and alleging that an additional payment of $400 was made to the plaintiff on or about November 30, 1912, and that at the time the defendants signed the guaranty the original contract had not been signed by the defendant Doherty, that they received no consideration for the execution thereof, and that the same was delivered to the plaintiff by Doherty without the knowledge and consent of the defendants Coliton and Evoy.

Upon the trial of the action the plaintiff offered in evidence the written contract and guaranty, and the execution and delivery of such instrument was clearly established. The only testimony offered by the plaintiff to prove a sale and delivery to Doherty by the plaintiff of any goods, and the value thereof, was the testimony of Frank Collins, which was as follows:

“Q. What is your name? A. Frank Collins. Q. Where do you live? A. Minneapolis. Q. Are you an officer of the plaintiff, Dr. Eaton Chemical Company? A. Yes, sir. Q. What officer? A. President and treasurer. Q. How long have you been connected with the plaintiff as an officer? A. I was secretary first; I have been with the company nearly four years as an officer. Q. Do you know whether or not this contract was accepted on behalf or by the plaintiff, Eaton Chemical Company? A. Yes, sir. Q. And do you know about the time-the date-of the acceptance of it? A. About June 3d, I think. Q. About June 3, 1910? A. About June 3, 1910. Q. Do you know whether the goods were furnished under this contract to the defendant Doherty at that time? A. Yes, sir. Q. Do you know how much, or at what price? A. Yes; I have the amounts here and shipments. Q. You may state what quantity and what price goods were furnished to this man Doherty. Mr. Soule: That is objected to as incompetent, irrelevant, and immaterial, and out of the order of proof. The Court: Overruled. Mr. Soule: Exception. A. The amounts? Q. Yes. A. On June 23, 1910, $466.10; and July 2, 1910, $424.60. Q. Was that at the regular wholesale price of this goods at that time? Mr. Soule: Objected to as incompetent, irrelevant, and immaterial; the pleadings having set forth a specific agreed price. The Court: Overruled. Mr. Soule: Exception. A. Yes; a wholesale price.”

Cross-examination by Mr. Soule:

“Q. How do you know there was $890.70 worth of goods furnished? A. Because that was according to our books. Q. You don't know anything about it yourself, personally? A. Oh, yes; I am in the office all the time. Q. You see the books right along? A. Yes, sir. Q. And the knowledge which you have regarding the furnishing of these goods comes from your inspection of the books? A. Yes, sir; and from seeing the goods shipped out. Q. You saw these goods shipped, did you? A. Part of them; not all of them. Q. What part did you see shipped; what part did you see shipped? A. Practically all of the first shipment. Q. Where did you see it? A. At our place of business in Minneapolis. Q. Where is that? A. We were at 709 First Avenue South then. Q. Have you got a side track in there from the railway? A. No, sir. Mr. Weeks: That is objected to as immaterial and improper cross-examination. The Court: Overruled. Mr. Soule: Read the question. (The last question read to the witness.) A. No. By Mr. Soule: Q. You testified that you only knew about the shipment of part of the goods. What portion of the first shipment did you know about? A. I don't do all the shipping and packing, but I supervise the business and know what is going on. I have men to work there. Q. Well, what portion of that first shipment can you testify positively about? Mr. Weeks: Objected to as improper cross-examination, already gone over, and immaterial. The Court: Overruled. Mr. Weeks: Exception. A. Why, I superintend the general business, and we have help in shipping. I am positive the goods were all shipped; but I did not handle every box in the shipment, or every package. Q. Your duties are confined to the postage stamps and envelopes, then? A. No, sir; my business-my duties are confined to the general supervision of that business. Q. You are willing to testify positively to the shipment of any portion of the first invoice? A. Why, certainly; I testify that it was all shipped that we have charged him with.”

Redirect examination by Mr. Weeks:

“Q. Mr. Collins, your company keep a set of books, do they? A. Yes, sir. Q. Do they keep an invoice book? A. Yes. Q. Do you know whether or not these books-these books or records-are correctly kept? A. Yes, sir. Q. Have you recently examined the books with reference to the account against J. P. Doherty, which you have testified to? A. Yes. Q. And do you know that that amount is correct? A. Yes. Q. Does that account show the items that you have testified to here as charged to Doherty? A. Yes. Mr. Soule: Objected to as not the best evidence. The Court: Sustained. Mr. Weeks: Exception. Q. When did you examine these books, Mr. Collins? A. Oh, I see the books right along, and I have examined them just before I come up here. Q. Where are those books now? A. In the safe in Minneapolis. Q. Was it possible to have these books here? A. We are using them right along, and keep them in the safe. Q. Would it be possible-that is, would it be interfering with your business-to take these books away from Minneapolis? Mr. Soule: Objected to as incompetent, irrelevant, and immaterial. The Court: Overruled. Mr. Soule: Exception. A. Yes. Q. Now, outside of your personal knowledge of this transaction, can you refresh your memory from an examination of the books, and state whether or not the statements you have given are correct, as to this account? A. Yes. Q. And are they? A. Yes. Mr. Soule: Objected to as incompetent, irrelevant, and immaterial, and not the best evidence; no proper foundation laid. The Court: Overruled. Mr. Soule: Exception.”

At the close of plaintiff's case the defendant moved for a dismissal of the action on the ground that no evidence had been introduced sufficient to sustain the allegations of the complaint and sufficient to constitute a cause of...