Hensgen v. Mullally

• Decision Date: 21 December 1886
• Citation: Hensgen v. Mullally, 23 Mo.App. 613 (Mo. App. 1886)
• Parties: JOHN HENSGEN, EXECUTOR, Appellant, v. J. P. MULLALLY, Respondent.
• Court: Missouri Court of Appeals

23 Mo.App. 613

JOHN HENSGEN, EXECUTOR, Appellant,

v.J. P. MULLALLY, Respondent.

St. Louis Court of Appeals, Missouri.

Dec. 21, 1886.

APPEAL from the St. Louis Circuit Court, GEORGE W. LUBKE, Judge.

Affirmed.

I. D. FOULON, for the appellant.

J. P. VASTINE, for the respondent.

LEWIS, P. J., delivered the opinion of the court.

The plaintiff sues as executor of John Hensgen deceased, on an open account made by the defendant with the testator, during his lifetime, for work and materials delivered, chiefly in repairing and re-furnishing vehicles.The cause was sent to a referee, who found and reported in favor of the defendant, on the ground that the only testimony offered by the plaintiff was inadmissible for the purpose of proving the account.The referee, in his report, says that the plaintiff“introduced evidence tending to establish the authenticity of certain books of account of his testator, in which books of account are contained the items of work, service, and labor constituting the subject matter of his action.The evidence satisfactorily established the proposition that the books produced were the regular books of account of the plaintiff's testator, and that the entries therein were made at or about the time of the various transactions therein recorded.The evidence also established the fact that all of said entries in said books were made by the plaintiff's testator in person, and not by a book-keeper or clerk.”The referee sustained the defendant's objection to this evidence, as incompetent to prove the account, and was in turn sustained by the circuit court.

The principles of the common law excluded a plaintiff's book entries as evidence against the other party, apparently on the ground that one could not be permitted to make evidence in his own favor.The English courts, however, long ago recognized the admissibility of such testimony, where the entries were against the interest of the party making them.Higham v. Ridgway,1 East, 109.Among the American courts there has been a considerable diversity of opinion upon the admissibility of book-entries to prove the facts therein stated, whether for or against the interest of the party making them.But in Missouri, the rule has long been settled, that a party can not introduce his book entries for the purpose of establishing the correctness of his account.In Hissrick v. McPherson(20 Mo. 310), the subject was fully considered by Judge Scott, who demonstrated, not only that such evidence had never been recognized as admissible in this state, but that to do so would be, as he shows by several illustrations, directly hostile to the policy of our jurisprudence.The learned counsel for the appellant in this case argues with much ingenuity that the change in our statute, which now permits a party to testify in his own behalf, has reversed the rule of that decision.We do not perceive that the premises sustain the conclusion.The law which admits that a party may testify truly in his own interest, leaving his credibility to be determined by the jury, certainly adds nothing to the credibility of his voluntary statements made out of court, and without the sanction of an oath; and his book entries amount to nothing more.This court held, in Daum v. Neumeister(2 Mo. App. 597), that the change in the law referred to made no difference in the rule excluding book accounts as evidence.The rule of Hissrick v. McPherson, has been adhered to in a number of decisions since the change made in the statute.Lord v. Siegel,5 Mo. App. 582;Hansonv. Jones,20 Mo. 595;Anderson v. Volmer,83 Mo. 403;Daum v. Neumeister,2 Mo. App. 597;Cozzens v. Barrett,23 Mo. 544.

The appellant insists that the death...