Fargo Mercantile Co. v. Johnson

• Decision Date: 04 March 1921
• Citation: 181 N.W. 953,47 N.D. 304
• Parties: FARGO MERCANTILE CO. v. JOHNSON et al.
• Court: North Dakota Supreme Court

47 N.D. 304

181 N.W. 953

FARGO MERCANTILE CO.

v.JOHNSON et al.

Supreme Court of North Dakota.

March 4, 1921.

Appeal from District Court, Cass County; Englert, Judge.

Action by the Fargo Mercantile Company against Martin E. Johnson and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Grace, J., and Robinson, C. J. dissenting.

Lyman Miller, of Fargo, for appellants.

Engerud, Divet, Holt & Frame, of Fargo, for respondent.

Statement.

BRONSON, J.

This is an action upon a contract of guaranty for goods sold and delivered. Upon a previous appeal (171 N. W. 609) this court held that the contract covered goods sold anterior to its date. The defendants have appealed from a judgment awarded for goods sold, both anterior and posterior to the date of the contract of guaranty. The essential facts necessary to be stated are as follows:

Between October 17, 1913, and September 14, 1914, the plaintiff engaged in the wholesale business, sold and delivered certain merchandise to the Everybody's Store, a corporation engaged in the retail business. On September 14, 1914, the account between the retailer and the wholesaler not being in a satisfactory state, and the plaintiff desiring security in order to continue the credit relations and further sales, the defendants, who were then officers of the retail company, one the president and the other the active manager, made to the plaintiff the contract of guaranty herein involved. Thereafter, until October, 1914, further sales were made to the company. Thereupon the retail company went into bankruptcy. This action is maintained to recover the amount due for the sales made, less moneys paid upon the account by the trustee in bankruptcy. Upon the trial the plaintiff introduced in evidence its loose-leaf ledger sheets of its account with the retail store. The plaintiff, in maintaining books of account, employed the double-entry loose-leaf system. This system involved substantially the following operations: The making of an order for merchandise by a salesman personally, or over the telephone; the checking of such order through the credit department, and its final shipment with the invoice to the vendee. These orders so made, after verification, were thereupon posted in the ledger from which the account introduced in evidence was taken. These orders were thereupon filed alphabetically for each day's business. They were kept a few years and then destroyed. Evidence was also introduced that the orders for the merchandise sold to Everybody's Store up to September 14, 1914, had been destroyed; that the ledger sheets introduced were the permanent records of the plaintiff, and they were verified as true and correct by the plaintiff's bookkeeper and its cashier. The evidence further shows that, when this contract of guaranty was signed by the defendants, plaintiff's creditman produced for the defendants a full itemized statement of the account; that the defendants referred to the retail store ledger, compared it, and such account agreed therewith. The defendants offered no evidence. Both parties moved for a directed verdict; the defendants, particularly, that judgment be rendered against them for only the amount of merchandise furnished since the date of the contract of guaranty. The trial court, dismissing the jury, made findings of fact in favor of the plaintiff for the whole amount of the unpaid account. Upon this appeal the defendants specify, as grounds for reversal, that the trial court erred in receiving the ledger account as proof of the particular goods sold and delivered, and particularly as against these defendants who are third parties with respect to the sales so made.

Decision.

[1][2] Upon this record the trial court properly received in evidence the ledger account of the plaintiff. The record sufficiently...