Friendly v. Lee

• Citation: 20 Or. 202,25 P. 396
• Parties: FRIENDLY v. LEE.
• Decision Date: 16 December 1890
• Court: Supreme Court of Oregon

25 P. 396

20 Or. 202

FRIENDLY v. LEE.

Supreme Court of Oregon

December 16, 1890

Appeal from circuit court, Benton county; R.S. BEAN, Judge.

This was an action to recover $60. In substance, it arose out of this state of facts: The plaintiff alleges that on the 29th day of May, 1886, he borrowed of the defendant the sum of $300 at the rate of 10 per cent. interest; that on the 28th day of November, 1887, he paid the plaintiff $45 on the same and that on the 7th day of September, 1889, there was due the sum of $356.22; and that he paid the defendant the said sum of $356.22, and, by mistake, in addition thereto, paid the defendant $60; and that he has demanded the payment of the said sum of $60, which the defendant refused to pay, etc. The defendant, by his answer, after denying the facts as alleged avers that the said sum of $300 for which the plaintiff gave his promissory note, with interest, etc., was borrowed on the 29th day of May, 1884, and not otherwise. All the other facts are admitted, and the right to recover the sum of $60 sued for depends on whether it was borrowed on the 29th day of May, 1886, as alleged by the plaintiff, or on the 29th day of May, 1884, as claimed by the defendant. It appears by the bill of exceptions that the plaintiff testified, in substance, that he received the said sum of $300 from the defendant on the date as alleged by him, and that it was the only money he had ever borrowed or had of the defendant, and offered in evidence what he called a "cash-book," which had been kept by him, and that the entries therein were made at the time they purport to have been, and that he knew they were correct; and in which book, on page 67 thereof under date of May 29, 1886, there was an entry in the plaintiff's handwriting of $300 cash received of the defendant, etc. The defendant objected to the introduction of the same, which the court sustained, except in so far that the witness might be allowed to refresh his memory therefrom to which exception was taken; and this constitutes the main ground relied upon to reverse the judgment.

(Syllabus by the Court.)

While books of account kept by a party, or known by him to be correct, may be used by him as memoranda for the purpose of refreshing his memory, this question must be kept distinct from the question under what circumstances books of account, shown to have been correctly kept, are admissible as original evidence.

A witness will be permitted to refresh his memory by an examination of memoranda reasonably contemporaneous with the transaction to which they relate, regarding dates, figures, results of calculation, and the like.

Where the record discloses that, at the time the witness testified, he had, without even looking at the entry in his book, a distinct recollection of the essential fact stated therein, there was no necessity whatever of reading the entry the jury, and there was no error in refusing it.

A judgment non obstante veredicto is always upon the merits, and is never granted but in a very clear case, as where it it is apparent to the court from the defendant's own plea that can have no merits.

J.W. Rayburn and John M. Somers, for plaintiff.

J.R. Bryson and W.S. McFadden, for defendant.

LORD, J., (after stating the facts as above.)

Upon this state of facts the only inquiry is, did the trial court err in refusing to permit the entry on the cash-book to be read to the jury as evidence? The issue was whether or not the plaintiff had received from the defendant the sum of $300 on the 29th day of May, 1886. It was in support of that issue to which his testimony was directed, and the entry was offered as evidence. The record discloses that he had testified that the $300 was received by him from the defendant on that date, and that it was the only money he had ever borrowed or had from the defendant: that, after testifying to these facts, he offered in evidence the page of his cash-book embracing the entry of the sum of money loaned, to show the date it bore was as he had alleged. Upon objection, the trial court, while excluding the entry as evidence, allowed it to be used for the purpose of refreshing the memory of the plaintiff, to enable him to testify to the fact of his own knowledge. The contention for the plaintiff is that the entry was admissible, but the law cited and relied upon to sustain it relates exclusively to the admission of the account-books of merchants and handicraftsmen in proof of the delivery of goods or the performance of work therein charged. Briefly, it may be said, at common law, the shop-books, or books of account, when the entries therein were made by a clerk, were received in evidence to prove the sale and delivery of the goods; but it was necessary to show that such books were kept for the purpose, and the entries to have been made contemporaneous with the delivery of the goods, and made by the person whose duty it was to make them. 1 Greenl.Ev. § 117, and notes. In this country the rule has been extended so as to admit the books when the entries therein have been made by the party himself; but there is not entire uniformity in regard to the admissibility of books of account in different jurisdictions, except that they all concur in requiring that the entries should be made in the regular course of business, and correctly kept, before they should be received in evidence. Id. § 118; Wood's Pr.Ev. §§ 139-145.

While however, books of account kept by a party, or known by him to be correct, may be used by him as memoranda, for the purpose of refreshing his memory, this question must be kept distinct from the question under what circumstances books of account, shown to have been correctly kept, are admissible as original evidence. In the case of shop-books, or books of accounts, the entries made therein are admitted to prove the sale and delivery of the goods, or the payment of money, or the performance of work, as the case may be. In the case at bar, no such purpose was contemplated. The entry in the cash-book was not offered to prove the payment of the sum borrowed, for that had already been made, but to prove the date when the money was received, so as to ascertain whether there had not been two years' interest paid more than the transaction authorized. As evidence ipso facto, the entry was excluded, but, as a memorandum made contemporaneous with the transaction, the witness was permitted to refresh his memory by an examination of it, and, when his memory was thus refreshed, to testify to the fact of the date of his own knowledge. In Best on Evidence, note to ...