Ellsworth v. Sons

• Decision Date: 30 September 1879
• Citation: 64 Ga. 243
• Court: Georgia Supreme Court
• Parties: Bracken & Ellsworth. v. Dillon & Sons.

64 Ga. 243

Bracken & Ellsworth. v. Dillon & Sons.

Supreme Court of the State of Georgia

(September Term, 1879.)

Evidence. Partnership. Contracts. Set-off. Practice in the Superior Court. Before Judge Mershon. Glynn Superior Court. May Term, 1879.

The following, taken in connection with the opinion, sufficiently reports this case:

Dillon & Sons, who were merchants, brought complaint on an open account against Bracken & Ellsworth, partners in a sawmill. The account embraced a variety of items; among others payments of drafts and accounts, and for cash, and also the following:

                -------------------------------------------------------------------
                |"Sept.|30. 1871|Amt. P. J. Bracken account transferred|$1,371.81.|
                |------|--------|--------------------------------------|----------|
                |      |''      |" Bracken & Haslam, do                |283.34.   |
                |------|--------|--------------------------------------|----------|
                |      |''      |" P. J. Bracken, do                   |123.05."  |
                -------------------------------------------------------------------
                

Defendants pleaded the general issue, and also that they had made various payments to plaintiffs, which were not specifically described because they were made by drafts not now in the possession or control of the defendants; but they alleged that in all plaintiffs were over-paid, and they prayed judgment for whatever such excess might be.

On the trial one of plaintiffs swore that the transfer of accounts stated above was authorized by Bracken, and known and assented to by Ellsworth. They swore to the contrary. Dillon, the senior partner of plaintiffs' firm, was the principal witness in their behalf. Among other things, he stated that plaintiffs had had two clerks, one of whom he had heard was dead, and the other was in Wayne county; also that they had two book-keepers in addition to plaintiffs *themselves. One of these was shown to be dead; the other was a witness in the case. It also appeared that Bracken & Ellsworth succeeded P. J. Bracken in business, who had succeeded Bracken & Haslam.

The jury found for plaintiffs $877.22 with interest. Defend-ants moved for a new trial on the following, among other grounds:

1. Because the court erred in admitting in evidence, over the objections of defendants' counsel, the books of the plaintiffs to prove the account, when the evidence showed that they were not the books of original entries, and that he had two clerks at the time said account was made, neither of whom was shown to be dead, beyond the jurisdiction of the court or otherwise inaccessible to the diligence of the plaintiffs. [The evidence showed that the clerks entered their sales in blotters at the time of making them; these blotters were then handed to the book-keeper, and from them he made up the books.]

2. Because the court erred in charging the jury as follows: "It is a suit upon an open account brought by Dillon & Sons against Bracken & Ellsworth, and in order to prove the account sued upon, the plaintiffs have introduced their books as proof. As proof they are legally to be admitted. The books that have been admitted in this case are introduced as books of original entries under the law. In the absence of better proof, they are to be considered by you. As to whether they are the books of original entries or not you have nothing to do with that question. That is a question for the court, and the court has decided they are. If they are not, it is the court's error and you are not responsible for it."

3. Because, after charging the following request, to-wit: "Should you find from the plaintiffs' account that debts of third persons, to-wit: P. J. Bracken, Bracken & Haslam, and others, have been charged to the defendants by the plaintiffs, then before they could be made liable to pay said ac-counts or debts it must appear that the defendants undertook and promised, in writing, to pay said accounts, [for if not in writing they must have promised to pay said accounts] upon some valuable consideration flowing from the plaintiffs to Bracken & Ellsworth, the defendants in this case, " the court added the following qualification: "In connection with the sixth request to charge by the defendants' counsel, which I gave a moment ago, I charge this further—that if yon find from the evidence in this case that Bracken & Ellsworth became the successors of P.J. Bracken in a subsisting business, and as a consequence of that change that Dillon & Sons, with whom they were dealing, were authorized to transfer the account of P. J. Bracken to the account of the successors, Bracken & Ellsworth, that the presumption would be that it was for a valuable consideration." (The words in brackets appear in the bill of exceptions, but not in the motion as set out in the record.)

4. Because the court erred in charging the jury the following request of plaintiffs' counsel: "Counsel request the court to charge the jury that the plea of set-off by the defendants cannot be considered by them, for the reason that the same is so loosely drawn that no recovery can be had thereon—sec. 3465 of the Code: 'Every plea of set-off must set out the demand as plainly as if sued on.' "

5. Because the court erred in charging the jury as requested by plaintiffs' counsel as follows: "That where a new partner comes into a business, and said business continues, and is conducted without change as to the character of the business, and a balance was due by the old firm, it is competent for the new firm to assume the balance of indebtedness of the old firm, and such assumption, and the indebtedness of the old firm may be proved by testimony, and in some cases may even be implied from the transaction. If the evidence in this case discloses that Bracken & Haslam conducted a steam saw mill business on the Macon & Brunswick railroad; that P. J Bracken continued the same business; that Bracken & Ellsworth be came the successors *to the same business; that all these parties had dealings with Dillon & Sons; that Bracken & Ellsworth assumed sums due Dillon & Sons by Bracken & Haslam and P. J. Bracken, and authorized the transfer of said amounts to the account of Dillon & Sons against Bracken & Ellsworth, they are bound by it. As to such sums as Dillon & Sons are entitled to recover, you may look to all the circumstances surrounding the transaction for the purpose of determining the matter of said alleged transfer."

6. Because the court erred in the following practice: After counsel in said cause upon both sides had announced closed, the defendants introducing no testimony, C. Symmes, Esq., leading counsel for defendants, opened the argument, and during its progress insisted that the court should charge the jury that certain payments of money in the account by the drafts and notes could not be proven by parol or the books, that the drafts and notes were themselves the highest evidence; upon which counsel for plaintiffs stated to the court that secondary evidence had been admitted (without objection) of the payment of these items; that the drafts and notes were in the courthouse, and would have been introduced by counsel for plaintiffs if such objection had been made. Counsel for defendants insisted that they had made such objection; whereupon, under the misunderstanding aforesaid, counsel for plaintiffs moved to re-open the cause for the purpose of introducing said drafts and notes as evidence, which motion the court sustained, upon the ground that the justice of the cause required it.

The motion was overruled, and defendants excepted.

S. W. Hitch; Symmes & Atkinson; Ira E. Smith, for plaintiffs in error.

Goodyear & Harris, for defendants.

JACKSON, Justice.

This suit was brought on an open account by the plaintiffsagainst the defendants as partners. These partners were *successors to Bracken, one of those now sued, and Bracken was successor to Bracken & Haslam. On theaccount sued on were items transferred from Bracken\'s account when alone and from Bracken & Haslam\'s account. Under the rulings and charge of the court, the jury found some eight or nine hundred dollars with interest for several years against the defendants, Bracken & Ellsworth, successors as aforesaid, and they moved for a new trial, which the court refused, and this refusal, on many grounds taken in the motion, is the error assigned.

1. It is claimed that the books were improperly admitted on behalf of the plaintiffs to prove anything at all. There were two clerks, alive and not inaccessible so far as was shown in the proof, who were the salesmen of the goods sold and delivered. Besides, there appears to have been two book-keepers, one of whom was dead, but the other accessible, being the son of the plaintiff who was sworn in the case. The question is whether those books of goods so sold, and the books so kept, were admissible in evidence, even to prove the account for the groceries and provisions sold by the plaintiffs in the line of their ordinary business.

Our law on this subject is plainly and fully presented in the Code—section 3777—and is as follows:

"The books of account of any merchant, shop-keeper, physician, blacksmith, or other person doing a regular business and keeping daily entries thereof, may be admitted in evidence as proof of such accounts, upon the following conditions:

"1. That he kept no clerk, or else the clerk is dead, or otherwise inaccessible.

"2. Upon proof (the party's oath being sufficient) that the book tendered is his book of original entries.

"3. Upon proof (by his customers) that he usually kept correct books. "4. Upon inspection by the court to see if the books are free from any suspicion of fraud."

The codification of the Georgia law upon this...