House v. Beak

• Decision Date: 12 May 1892
• Citation: 141 Ill. 290,30 N.E. 1065
• Parties: HOUSE v. BEAK et al.
• Court: Illinois Supreme Court

141 Ill. 290

30 N.E. 1065

HOUSE

v.BEAK et al.¹

Supreme Court of Illinois.

May 12, 1892.

Appeal from appellate court, first district.Flower, Smith & Musgrave, for appellant.

Weigley, Bulkley & Gray, for appellees.

The other facts fully appear in the following statement to MAGRUDER, C. J.:

This is an action of assumpsit begun on April 16, 1889, in the circuit court of Cook county, by Amelia Beak and Alfred Bucher, late partners under the firm name of Beak & Bucher, suing for the use of Wight Bros., a firm composed of Louis Wight and J. Franklin Wight, against Sidney Guy Sea, Belden Seymour, Jr., W. T. Moore, Frank Conover, and Everett House, composing the firm of Sea & Co. Of the defendants Sea and House alone were served with process; the other defendants were not found by the sheriff. The declaration consists of the common counts only. Default was entered against Sea. The appellant House entered his appearance, and filed plea of general issue, with affidavit of merits. The case was tried before a jury. The only evidence introduced was produced by the plaintiffs. The jury returned a verdict of $4,089.91 in favor of the plaintiffs, upon which the circuit court entered judgment. The appellate court has affirmed the judgment of the circuit court, and from such judgment of affirmance the present appeal is prosecuted.

Beak & Bucher were wholesale merchants in Chicago, engaged in the business of manufacturing and selling furs, hats, and caps. They failed in the latter part of December, 1885, and assigned their accounts to Wight Bros. They sold goods to Sea & Co., also doing business in Chicago, in the months of September, October, November, and December, 1885. There were two accounts kept by them of their transactions with Sea & Co. during these months,-one of them of goods sold, and the other of goods consigned. The account of the sales was kept in two sales journals, known as ‘Exhibits A and B;’ and the account of the consignments was kept in a separate book, known as ‘Exhibit C.’ By the books and other evidence it was shown that between September 17 and December 23, 1885, Beak & Bucher consigned to Sea & Co. goods to the amount of $6,832.03, upon which amount they were entitled to credits of $3,097.50, leaving a balance of $3,734.53; and that between September 17 and December 17, 1885, they sold to Sea & Co. goods to the amount of $2,257.02, upon which credits to the amount of $1,902.44 were due, leaving a balance of $354.58; making the entire claim on both accounts, $4,089.91. The two accounts consisted of a large number of items on both the debit and credit sides thereof. Alfred Bucher swore that he was the bookkeeper of the firm; that Beak & Bucher sold and consigned goods to Sea & Co.; that Richard Beak was manager of the fur department, and made the arrangements; that the orders for goods were sometimes given at the store of the plaintiffs, and sometimes to Richard Beak at the store of defendants; that witness made the entries on the ledger and cash books, but not on the sales books or delivery books or receipt books; that the sales books and consignment book were kept by Lewis Henry, and were books of original entry, and were made from memoranda furnished by salesmen, shippers, etc., to the invoice clerk; that the books showed the accounts and amounts above set forth; that he had checked up the charges for bills as rendered with the receipts,-that is, the total of each delivery,-and found the receipts to correspond. Lewis Henry swore that he was bill clerk for plaintiffs during said months; that he entered the charges for goods sold; that he kept the original sales books and the assignment book, and made the entries therein; that the entries were made therein in the regular course of trade at the times when they bear date, and as a part of his duty, and were true and correct; that he always made out the invoices, which were sometimes given to the party getting the goods, and sometimes sent with the driver who delivered them; that he made the entries from data furnished by Richard Beak, either directly or through order slips; that his recollection is that he received all of the items from said Beak, but there may have been exceptions. Richard Beak testified that he sold goods for Beak & Bucher in 1885, and did all the business for them with Sea & Co.; that he sold all the goods named in said entries to Sea & Co.; that the entries are correct; that the consigned goods were all agreed upon between himself and Sea; that he fixed the prices at the time of sale on all the goods as they were ordered; that he either made out order slips for all the goods sold, or gave the items directly to Henry; that all the goods sold were entered in Exhibits A and B; that the consigned goods were entered in Exhibit C, which is in the handwriting of Henry, ‘and he got the data for all of the items from me;’ that the items were correctly given to Henry of all goods consigned to Sea & Co.; that he used to be over at Sea's store nearly every day, and saw goods there that came from plaintiffs' store,-cloaks, seal garments; that he sometimes examined the books, to see whether the items on the order slips were entered correctly; that the prices agreed upon between himself and the buyer for Sea & Co. were the market prices; that ‘on the consigned goods we were to get the money after they sold at price invoiced;’ that he made an agreement with Sea for cousigned goods at two different times; that Sea & Co. ‘were to pay for goods they sold when they sold them, and what was not sold they would return;’ that he went to see Sea & Co. a day or two before the failure of Beak & Bucher; that he went for money, and to settle their account; that he saw Sea, and received a check for $1.000 from him; that Sea had the invoices looked over; that he looked over the account himself, or had his bookkeeper look it over; that he found no fault with the account. Daniel D. Denna testified that he was employed during said four months by Sea & Co. as inspector of goods and floor manager. He proved the signatures to receipts given by Sea & Co., or persons employed by them. for goods sold and delivered to them by Beak & Bucher during that period. These receipts gave the numbers of boxes or packages, and their values, respectively, in dollars and cents. Sea & Co. were thus shown to have received from Beak & Bucher within the period above named goods to the amount of more than $5,000. Charles Felcher also testified that he drove an express wagon for Beak & Bucher during said period, and delivered to Sea & Co., at their store in Chicago, boxes and packages of goods, and took receipts from them for the goods, and that the receipts named in the book shown to him were the receipts so taken; that sometimes he delivered goods to them two or three times a day; that he cannot swear to the delivery of all the goods, as another expressman would carry them when he happened to be away, and sometimes something was sent by the boys in the store. Edward E. Gray, one of the attorneys for plaintiffs, swore that he presented the account sued upon the Sea in the latter part of December, 1885, and informed him of its assignment to Wight Bros., and told him to make payments at the office of said attorneys; that Sea took the account, and said, ‘All right;’ that the books of Beak & Bucher have been in the possession of said attorneys from December, 1885, to April, 1889, and a great many statements have been made from them, and they have been found correct.MAGRUDER, C. J., ( after stating the facts.)

It is assigned as error that the trial court received in evidence the books of account of Beak & Bucher, showing the items of the accounts sued upon. It is claimed that a proper foundation was not laid for the introduction of the books, and that, therefore, they should not have been admitted. We think that the books were properly admitted in connection with the evidence set forth in the statement of facts, which precedes this opinion. The court did not determine the weight of the books as testimony, but simply the admissibility. It was for the jury to decide what weight should be given to them. The defendant had the right to introduce proof for the purpose of contradicting them, or showing their incorrectness, but they failed to introduce any testimony whatever; and the books, together with the other evidence which accompanied them, made a prima facie case. The third section of the act in regard to evidence and depositions in civil cases is as follows: ‘Where, in any civil action, suit, or proceeding the claim or defense is founded on a book account, any party or interested person may testify to his account book, and the items therein contained; that the same is a book of original entries, and that the entries therein were made by himself, and are true and just; or that the same were made by a deceased person, or by a disinterested person, a nonresident of the state at the time of the trial, and were made by such deceased or nonresident person in the usual course of trade, and of his duty or employment to the party so testifying; and thereupon the said account book and entries shall be admitted as evidence in the cause.’ I Starr c. a/nn. St. p. 1076; Rev. St. 1891, c. 51, § 3. This statute permits the party himself to testify to his own books. The party himself was not allowed so to testify at common law. The common law requires that the entries in the book should be proved by the clerk or servant who made them, if such clerk or servant be alive, and can be produced. Burnham v. Adams, 5 Vt. 313. It was necessary, in order to make the book admissible, that the entries therein should have been made in the ordinary course of business by a person whose duty it was to make them, and that they should have been made contemporaneously with the delivery of the goods, so as to form a part of the res gestae. 1 Greenl. Ev. §§ 115-120; Railroad Co. v. Ingersoll, 65 Ill. 399....