Gallivan v. Stickler

• Decision Date: 21 February 1918
• Docket Number: 23,288
• Citation: 118 N.E. 679,187 Ind. 201
• Parties: Gallivan v. Stickler
• Court: Indiana Supreme Court

118 N.E. 679

187 Ind. 201

Gallivan v. Stickler

No. 23,288

Supreme Court of Indiana

February 21, 1918

From Whitley Circuit Court; Luke H. Wrigley, Judge.

Action by Henry O. Stickler against James Gallivan. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under § 1405 Burns 1914, Acts 1901 p 590).

Reversed.

Hayes W. Linville, Benton E. Gates and David V. Whiteleather, for appellant.

William F. McNagny, Robert R. McNagny and Phil M. McNagny, for appellee.

OPINION

Lairy, J.

Appellee recovered judgment in the trial court in an action based on an oral contract. Appellant's motion for a new trial was overruled and this ruling of the court is assigned as error on appeal. Appellee's action was based on an alleged oral contract by the terms of which he was to purchase hay for appellant and was to be paid a commission on all hay purchased. In addition to such commission he was to receive one-half of the difference between the price at which he purchased the hay and the price which he was authorized by appellant to pay, in all cases where hay was purchased for less than such authorized price.

On the trial of the case appellee offered in evidence a paper designated in the record as "Exhibit F." This purported to be a statement in writing showing numerous purchases of hay from different persons named, showing in each instance the price which appellee was authorized to pay the price which was paid, and the number of tons purchased. One-half of the difference between the authorized price and the price paid was computed on the number of tons purchased in each instance and stated as due appellee. The testimony of appellee shows that the paper offered in evidence was not the original account or memorandum made at the time of the transaction, but that the items stated therein were taken from such original account by appellee or under his supervision. The law requires the best evidence unless a necessity is shown for the introduction of secondary evidence. There was no showing that the original account was destroyed or lost or that for any other reason it could not be produced. It is error to admit in evidence a copy of an original book of entry without a showing that the original cannot be produced. Crim v Fleming (1890), 123 Ind. 438, 442, 24 N.E. 358.

When the paper was offered as evidence, a proper objection was made to its admission, which the court overruled and permitted the paper to be read to the jury. It is apparently conceded by appellee's counsel that the evidence was improperly admitted, but it is asserted that the error was cured or rendered harmless by the statement of the court made in ruling on the objection, which is as follows: "Gentlemen of the jury: The paper which is about to be read to you and which constitutes plaintiff's claim on account of commission he claims due him under his agreement with the defendant that he was to have one-half of the difference in the price of hay which he purchased for the defendant below the price he was authorized to pay by the defendant is not any evidence of the truth of plaintiff's claim. It is given to you as constituting a detailed statement of plaintiff's claim, for such commissions. You are not to consider the paper as any evidence of the truth of the plaintiff's claim for such commission. The objection is overruled."

The trial court was clearly of the opinion that the paper which it permitted to be introduced into the...