Graham v. Dillon

• Decision Date: 14 May 1909
• Citation: 121 N.W. 47,144 Iowa 82
• Parties: WILLIAM GRAHAM, Appellant, v. TIMOTHY DILLON
• Court: Iowa Supreme Court

121 N.W. 47

144 Iowa 82

WILLIAM GRAHAM, Appellant, v. TIMOTHY DILLON

Supreme Court of Iowa, Des Moines

May 14, 1909

REHEARING DENIED FRIDAY, OCTOBER 1, 1909.

Appeal from Dubuque District Court.--HON. M. C. MATHEWS, Judge.

SUIT to recover for services as attorney. Counter-claim for money loaned. Trial to a jury, and verdict and judgment for the defendant. Plaintiff appeals.

Affirmed.

Andrew P. Gibbs, Lacy, Brown & Lacy, and W. & J. Graham, for appellant.

Lyon & Lyon, for appellee.

OPINION

SHERWIN, J.

This action was brought to recover for services rendered by the plaintiff at different times between February, 1898, and December, 1905; the amount claimed being $ 5,545.45. There was a denial of indebtedness, an allegation of payment, and a counterclaim for money loaned to the plaintiff. The aggregate amount of money loaned and the payments made for plaintiff's services, as alleged by the defendant exceeds the amount claimed of him by the plaintiff. The defendant had been having important litigation for some years before this suit was brought, and the plaintiff had been his principal attorney in said litigation. On the trial the defendant produced a book which he claimed was a book of original entries made by himself in the usual course of business, and the book contained entries showing payments and loans made to the plaintiff at different times and in different amounts; the payments covering the period of the plaintiff's employment. Using this book to refresh his recollection, the defendant testified to the payments and loans therein entered, and the book was then received in evidence. This ruling of the trial court furnishes the foundation for the appellant's most serious complaint. It is probably true that, under some of the early decisions of this court, the book alone would not be competent evidence of payments and loans. Veiths v Hagge, 8 Iowa 163, and cases following the rule therein announced. But even in that case and subsequent ones following it an exception was recognized in favor of books used in the business of banks and others engaged in a similar business, and in the opinion of the writer, where business transactions between an attorney and his client extend over a period of years and involve charges for services and payments made from time to time, a book showing such payments may well be brought within the exception noted, for the reason that attorneys and clients do not ordinarily pass receipts for payments made on account.

But whatever the rule should be in such cases, we need not now determine the question, because, the defendant having used the book to refresh his recollection, there was no error in permitting it to go to the jury. State v. Brady, 100 Iowa 191, 69 N.W. 290; State v. McGruder, 125 Iowa 741, 101 N.W. 646; Furlong & Meloy v. Ins. Co., 136 Iowa 468, 113 N.W. 1084; Bradley v. Chesebrough, 111 Iowa 126, 82 N.W. 472; Callihan v. Washington Water Power Co., 27 Wash. 154 (67 P. 697, 56 L. R. A. 772, 91 Am. St. Rep. 829) and cases cited thereon; Curtis v. Bradley, 65 Conn. 99 (31 A. 591, 28 L. R. A. 143, 48 Am. St. Rep. 177). Under the rule of the cases cited, if a witness...