First Nat. Bank v. Yeoman
| Decision Date | 03 September 1904 |
| Citation | 78 P. 388,14 Okla. 626,1904 OK 92 |
| Parties | FIRST NAT. BANK OF ENID v. YEOMAN. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. Written memoranda of subjects and events pertinent to the issues in a cause, made contemporaneously with their taking place, when shown by the oath of the person making them that they were known to be correct when made, may, when the memory of the witness is deficient, be referred to to refresh the memory of the witness; and, when so used, if the witness is unable to state the facts so recorded, such memoranda may be introduced in evidence, not as independent proof, but to supply the details of what the witness has sworn to generally.
2. When it is not shown that such memorandum was made contemporaneously with the happening of the events which it describes, and that the events were known to have been correctly recorded, it is error to admit such memorandum in evidence.
3. Where a mortgagee of chattels, for the purpose of enforcing its lien, seizes the mortgaged chattels in the hands of a third person, who claims to be the owner, and such third party sues to recover the value of the chattels so taken, and the mortgagee defends upon the grounds that the mortgagor made a fraudulent transfer to such third party, and executed the mortgage before there was any change of possession, such mortgagee will be treated as an incumbrancer, and not as a creditor of the mortgagor, and must show that it became an incumbrancer in good faith subsequent to the fraudulent transfer.
Error from District Court, Garfield County; before Justice James K Beauchamp.
Action by E. E. Yeoman against the First National Bank of Enid. Judgment for plaintiff, defendant brings error. Reversed.
Whittinghill & Hubbell, for plaintiff in error.
Rush & Steen, for defendant in error.
This was an action by E. E. Yeoman to recover the value of certain cattle alleged to have been unlawfully taken and converted by the defendant. It appears that the father of the plaintiff below, one A. J. Yeoman, borrowed $2,500 from the First National Bank of Enid, and, to secure the bank, executed a mortgage upon certain cattle. The note was not paid, and the agents of the bank went to the pasture of E. E. Yeoman, in Woods county, and by the assistance of an officer, and against the objections and protests of the defendant in error, forcibly took possession of the cattle in question which cattle the defendant in error claimed as his individual property, and which the bank claimed as covered by its mortgage given by A. J. Yeoman. Issues were formed, and the cause tried to a jury, and verdict returned and judgment rendered in favor of the defendant in error for the sum of $2,550, as the value of the cattle, it having been admitted by the bank that it had sold the cattle, and could not return them. The plaintiff in error filed its motion for new trial which was overruled, and now brings the case here for review.
The assignment of error that the trial court erred in overruling the motion for new trial embraces all the questions relied upon for a reversal of the judgment. The first alleged error is the admission in evidence over the objection of the defendant below of certain memoranda made by the plaintiff relating to certain transactions of his own, and not with the bank. One of the material questions on the trial of the cause was when and how the plaintiff became the owner of the cattle in controversy. The mortgage was executed by A. J. Yeoman on September 4, 1901, and described 150 head of cows located at certain divers places and of divers colors and ages, and "all branded Y on the right hip." The plaintiff testified as a witness in his own behalf, and claimed all the cattle branded Y on right hip were his cattle, and that his father never owned any cattle having such brand. It seemed that he had procured a number of these cattle from his father; that his father had bought some of them for him; that he bought some of them himself, and that his wife purchased some of them. Some were purchases before the execution of the bank's mortgage, and some afterwards. Some of them had been in the pastures of Yeoman, Sr., and some had not. The particular date of each purchase, the number purchased at each time, from whom purchased, and where the cattle were kept at certain dates, were material questions which arose upon the trial of the cause, and the plaintiff gave oral testimony on each of these several questions. During his examination it appears from the record that the following occurred: " The book was then submitted to the jury. The memoranda contained in the book appear in the record. It purports to be a statement of cattle purchased at various times, how paid for, notes executed, security given, where certain cattle were fed, where pastured, the number that died each year, the amount paid for feed and for pasture, the number of calves and increase, the brands, marks, and various other matter not relevant to any issue involved in the trial of the case. The first date of a transaction entered in the book is August 24, 1901, and the last entry is dated September 12, 1902. This memorandum does not purport to be a book of account, or to contain items of account with the bank or with the elder Yeoman, but is a record of events, dates, numbers, and marks made by the plaintiff for his own private use, and in his own interest. Was it error to admit this book in evidence? Our statute (Civ. Code, § 4574, Wilson's Rev. & Ann. St. 1903) provides: "Entries in books of account may be admitted in evidence when it is made to appear by the oath of the person who made the entries, that such entries are correct, and were made at or near the time of the transaction to which they relate, or upon proof of the hand-writing of the person who made the entries in case of his death or absence from the county." But this section has no application to a book of the character admitted in evidence in this cause.
The statute refers to "books of account," and refers to books only when they contain charges by one party against the other, or of dealings with him. Masters v. Marsh, 19 Neb. 458, 27 N.W. 438; Pollard v. Turner, 22 Neb 366, 35 N.W. 192; Van Every v. Fitzgerald, 21 Neb. 36, 31 N.W. 264, 59 Am. Rep. 835. The question as to whether independent written memoranda of subjects and events made by one of the parties to an action, and without the knowledge or acquiescence of the adverse party, pertinent to the issues, and made contemporaneously with their taking place, and supported by the oath of the person making them, are admissible in evidence for any other purpose than to refresh the memory of the witness, is one upon...
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