Feigenbaum v. Van Raalte
| Decision Date | 10 March 1947 |
| Docket Number | 39926 |
| Citation | 201 S.W.2d 283,356 Mo. 67 |
| Parties | J. M. Feigenbaum, Receiver of Vancoh Realty Company, a Corporation, v. Julius R. Van Raalte, Appellant |
| Court | Missouri Supreme Court |
Rehearing Denied April 21, 1947.
Appeal from Circuit Court of St. Louis County; Hon. Amandus Brackman, Judge.
Reversed.
Kerth & Schreiber for appellant.
(1) When an action at law has been submitted to the court sitting as a jury, the appellate court will, on appeal examine the evidence and reverse or remand the cause for retrial if there is a complete failure of evidence tending to support such finding and judgment. Sec. 114 (d), Civil Code of Missouri, Laws 1943, p. 388; Schmeiding v. Ewing, 57 Mo. 78; Hersman v. Hersman, 253 Mo. 175; James v. Hicks, 76 Mo.App. 108; Meier v. Proctor & Gamble Co., 81 Mo.App. 410; Neil v. Cunningham Store Co., 149 Mo.App. 53, 134 S.W. 503; Gump's Estate v. Jacobs, 222 Mo.App. 276, 297 S.W. 138; Williams v. Moore, 125 Mo. 574, 28 S.W. 853. (2) The books of a private corporation are self-serving and are not competent evidence of themselves when standing alone to establish an account or claim against a stranger, a stockholder, or a director of the corporation. Cape Girardeau & State Line Railroad Co. v. Kimmel, 58 Mo. 83; Rudd v. Robinson, 126 N.Y. 113, 26 N.E. 1046, 12 L.R.A. 473; McKelly v. Metco Products, Inc., 193 S.W.2d 28; Glenn v. Liggett, 47 F. 472; Carey v. Williams, 25 C.C.A. 227, 79 F. 906; Hayden v. Williams, 96 F. 279; Leonard v. Faber, 65 N.Y.S. 391; State ex rel. Kropf v. Gilbert, 251 N.W. 478; Schwaber v. Hargert, 40 A. 336; Taylor Link Oil Co. v. Anderson, 92 S.W.2d 499; Mack Realty Co. v. Beckley Hdw. & Supp. Co., 148 S.E. 122; Trainor v. German American Sav. & Loan Assn., 205 Ill. 616, 68 N.E. 650; 32 C.J.S., "Evidence" sec. 699, p. 594; 20 Am. Jur., "Evidence", secs. 977-978, p. 825. (3) Books and records are admissible to prove an account only if a proper showing is made that the books reflect an accurate condition and that the entries made therein were made contemporaneously, or nearly so, with the transaction recorded and in the ordinary course of business. Kliethermes Motor Co. v. Cole Motor Service, 102 S.W.2d 819; Armstrong v. Croy, 176 S.W.2d 852; Anchor Milling Co. v. Walsh, 208 Mo. 277, 18 S.W. 904. (4) Books of accounts are not admissible in evidence to prove loans, advances, or cash transactions. Gregory v. Jones, 101 Mo.App. 270, 73 S.W. 899; Nall v. Brennan, 324 Mo. 565, 68 A.L.R. 684, 23 S.W.2d 1053; Sonnenfeld v. Rosenthal, 84 A.L.R. 147, 247 Mo. 238, 152 S.W. 321. (5) There must be evidence tending to show an intention on the part of the parties who have dealings with each other consisting of transactions of entirely different character to make such transactions part of a running account before it will be treated as such, and this burden is upon the party asserting that the transactions form a running account. Earls v. Earls, 182 S.W. 1018; Brunnert v. Boeckmann's Estate, 258 S.W. 768; Chadwich v. Chadwich, 22 S.W. 479. (6) An action upon account is barred by limitations after five years and such action is deemed to have accrued from the time of the last item in the account on the adverse side. Secs. 1014, 1019, R.S. 1939.
S. C. Rogers for respondent.
(1) The court quite properly admitted the books and records in evidence for the reason the liberal rule is greatly relaxed as to admitting record books in evidence in the case of death of the keeper of the books which all the evidence shows was the fact in this case. Gordon & Koppel Cloth Co. v. N.Y.C.R. Co., 285 S.W. 755; 32 C.J.S., p. 556, sec. 684; Hartwell v. Packs, 240 Mo. 537. (2) In fact it is directory by statute. Secs. 1887-1888, R.S. 1939. (3) Appellant stresses the statements claimed to have been made by Charley Hahn, the bookkeeper, who was dead at the time of the trial. Such statements were improperly admitted in evidence by the court over respondent's objection and have no place in this case. Sturdy v. Smith, 132 S.W.2d 1033; Liesemeyer v. Moberly, 119 S.W.2d 1012. (4) Account books are admitted in evidence when the matter at issue is a proper and usual subject of charge on books of account, such as the account in this cause, and upon proof as in the record here, were properly admitted in evidence. Anchor Milling Co. v. Walsh, 108 Mo. 277; Sec. 1888, R.S. 1939; Gordon & Koppel Cloth. Co. v. N.Y.C.R. Co., 285 S.W. 755; 32 C.J.S., p. 556, sec. 684; In re Greenwood's Estate, 201 Mo.App. 39; Welch-Sandler Cement Co. v. Mullens, 31 S.W.2d 86; Kansas City Wholesale Grocer Co. v. Poindexter & Sons Mdse. Co., 232 Mo.App. 378, 107 S.W.2d 841; Roland v. Gassman, 44 S.W.2d 658; Secs. 1887-1888, R.S. 1939. (5) It was peculiarly within the power of appellant to disprove the account in whole or in part if any such proof was extant as he was or should be in possession of the true facts and, inasmuch as no such evidence was produced, even slight circumstances will be sufficient to establish a case. Smith v. Ohio Millers Mutual Co., 320 Mo. 146, 6 S.W.2d 920; Montague v. Washington Fidelity Mut. Ins. Co., 72 S.W.2d 804. (6) The failure to produce the best evidence creates a presumption against appellant. Burnside v. Doolittle, 324 Mo. 722, 24 S.W.2d 1011. (7) When the power of proof of certain facts is peculiarly with one side and not the other, as here, the burden of evidence shifted to appellant. Schneider v. Maney, 242 Mo. 36. (8) The failure to produce witnesses, Simon Van Raalte and Miss Ann Fine, raised the presumption their testimony would not be favorable to appellant. State ex rel. Smith v. Bland, 186 S.W.2d 443. (9) Appellant gave damaging testimony against himself on cross-examination. Pacific Lbr. Co. v. Jamison Lbr. Co., 213 Mo.App. 111. (10) Appellant urges there were two or three separate accounts, notes, collateral and commissions, and claimed that each was separate and distinct from the other. Such is not the law inasmuch as it was a mutual account existing between Vancoh Realty Company and appellant regardless of what the transactions were. So long as the accounts were not settled it was continuous and if the last item was within five years of the date suit was filed the entire account is saved from the bar. Chadwick v. Chadwick, 115 Mo. 581, 22 S.W. 479; Ring v. Jamison, 66 Mo. 424; Scheer v. Trust Co. of St. Louis County, 330 Mo. 166, 49 S.W.2d 135; Bowman v. Shelton, 175 Mo.App. 696; Roberts v. Neale, 134 Mo.App. 612; Hofman v. Sawyer, 227 Mo.App. 156, 50 S.W.2d 674; O'Shaughnessy v. Brownlee, 229 Mo.App. 344, 77 S.W.2d 867; McClelland v. St. Louis, 170 S.W.2d 131. (11) Where a physician operated and rendered a bill and it was not paid and a year and a half intervened and later professional services were rendered, it constituted one running account and the operation charge was not barred. Lowenstein v. Widdicomb, 52 S.W.2d 1044; Loveland v. Collins, 254 S.W. 22.
This is an action on an account, tried without a jury. Plaintiff had judgment for $ 117,855.43. (Balance due $ 105,166.33; interest $ 12,689.10) On motion for new trial a remittitur of $ 25,856.66 was ordered and made. Defendant has appealed from the final judgment entered.
Plaintiff has filed a motion to dismiss the appeal. Defendant's brief does not fully comply with our rules (the statement of facts is neither properly made nor in the proper place) and his transcript does not correctly show the final amended judgment entered after remittitur. Because we find merit in defendant's appeal, we have on our own motion ordered the Clerk to send up this judgment and have thus determined that it was properly entered. [See Rules 1.03, 1.15, 1.28 and 3.27] We, therefore, overrule this motion.
The Vancoh Realty Company was incorporated about 1904 and was engaged in buying and selling notes and mortgages. The owners were Simon Van Raalte and Abe Cohen, who were its principal officers. Defendant was the son of Simon Van Raalte who was president of the Company. He had an arrangement with Vancoh to buy deals he procured for it. He was never a director or stockholder of Vancoh and was never paid a salary. He was paid (at one time 25% and at other times 33 1/3%) out of the profits which Vancoh would make on each deal it accepted from him. He testified that, when a deal (usually to buy securities at a discount) procured by him was accepted, he would be furnished with a statement of the amount of his commission on such deal and that after some of these had accumulated he would be paid either by check or by the company's note. He said that there was no agreement for any of these commissions to be charged back against his account after such transactions had been accepted by the company, regardless of whether or not they were eventually liquidated in full. This was corroborated by Simon Van Raalte, who was 91 years old at the time of the trial. Defendant also said that prior to the nineteen-thirties Vancoh never had any loss on a deal. He further stated that he never received anything more from Vancoh than the amounts due him for commissions or on notes given to him for such commissions or for loans made by him to the company.
In 1926, defendant became the representative of the Investor's Syndicate of Minneapolis and handled its business in addition to soliciting business for Vancoh. During the nineteen-twenties Vancoh made profits of as much as $ 300,000.00 per year. After 1930 its earnings and activity diminished and it had losses on some of its mortgages and took in real estate on foreclosures. Defendant said that both he and his wife then made loans to the company to furnish money for expenses during this period and received its notes, some of which were never paid. The bookkeeper for Vancoh was Charles A. Hahn, who was also secretary of the company. The...
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