Jaeger v. Hackert

Decision Date07 February 1950
Docket NumberNo. 47602,47602
Citation241 Iowa 379,41 N.W.2d 42
PartiesJAEGER v. HACKERT et al.
CourtIowa Supreme Court

Bray, Carson & McCoy, of Oskaloosa, for appellants.

Gilbert & Scholz, of Oskaloosa, for appellee.

MULRONEY, Justice.

Plaintiff, a turkey raiser, purchased 3112 turkey poults from defendants' hatchery which were delivered to her in the late spring of 1943 in three deliveries on the days the poults were hatched, to-wit: 1545 on April 27, 1064 on May 1st, and 503 on May 4th. She paid $1887.56 for the poults and shortly after they were delivered to her they started dying, until 1673 of said poults died by July 31, 1943. On April 21, 1948 she filed her suit against defendants alleging that defendants warranted the poults as being 'good, healthful and free from disease' and that the warranty was breached in that the poults were, at the time of delivery, 'unhealthy and diseased' and the 'turkey poults were infected with pullorum disease.' The prayer was for judgment in the sum of $4500.00.

Defendants' answer admitted the sale but denied the warranty and the breach. Counsel for defendants admitted in his opening statement to the jury that there was an express warranty that the poults were free from disease and were healthy birds and the court instructed, without objection, on the theory of express warranty. The jury returned a verdict for $2016.14 and defendants appeal from the judgment entered thereon asserting the trial court erred in certain rulings on admission of evidence and in certain instructions given to the jury.

I. The plaintiff as the first witness in her suit testified that she entered in a book entitled 'Farm Account Book' a daily record of the poults that died during the year 1943. She testified that the entries therein were true and correct, all in her own handwriting and that on the evening of each day when she found dead poults she wrote down the month and day and the number of poults that had died on that date. When the book was offered in evidence defendants asked leave to cross-examine plaintiff with respect to the book. The leave to cross-examine was granted and thereafter defendants objected to the admission of the book on the ground it was not a general book of account but contained merely self-serving declarations not binding on defendants and irrelevant and immaterial. The trial court sustained the objection, stating however to plaintiff: 'It is available for refreshing your recollection * * *'. When direct examination of plaintiff was resumed she testified she could remember that around 1600 poults died between April 27, 1943 and August 1, 1943 but could not remember the number of poults that died each day of said period. The book was again offered in evidence and defendants objected and the court again ruled that while the book would not be admitted, plaintiff would be permitted to refer to the book in testifying concerning the dates when the poults died, and the number of poults dying on each of said dates. Plaintiff then, by referring to the book, testified as to the number of poults that died on various dates between April 27th and August 1, 1943. Defendants say in argument plaintiff 'read' this from the book and plaintiff's brief does not exactly deny the charge.

Defendants assign error in the trial court's 'permitting plaintiff to testify from and read to the jury, the entries in the book.' The only case cited by defendants is State Bank v. Brewer, 100 Iowa 576, 69 N.W. 1011. In that case a bank cashier was permitted over objection to testify from a record book which he had made and knew to be correct. The opinion states: 'The ruling of the court, when made, was correct. If it appeared, on cross-examination, that the witness, after refreshing his memory, could not recall the matters referred to, the defendant might properly have moved that the evidence already given be stricken from the record.'

This statement in the Brewer case is dictum and the case has never been cited as authority that a memorandum, made by the witness at the time of the transaction, and now known by the witness to be correct when made, is inadmissible or cannot be used by a witness, merely because the witness has no present recollection of the transactions recorded in the memorandum. The rule is that such a memorandum is admissible. It is best stated in Graham v. Dillon, 144 Iowa 82, 121 N.W. 47, 48, where a number of decisions of this court, and courts of other states are cited and the pronouncement made that: 'Under the rule of the cases cited, if a witness can testify that at or about the time a memorandum or entry was made he knew its contents, and knew it to be true, his testimony and the memorandum are both competent evidence, although the witness cannot testify to the facts as a matter of independent recollection, even after his memory has been refreshed.' See also Worez v. Des Moines City R. Co., 175 Iowa 1, 156 N.W. 867, where the foregoing rule was quoted with approval and the note in 125 A.L.R. 19.

Defendants in argument seem to recognize the foregoing rule as being the law of this state with respect to the admission of a memorandum made by a witness for their entire argument (aside from merely citing State Bank v. Brewer, supra) is that the rule of the Dillon case does not apply 'for the reason that the undisputed evidence here clearly establishes that the entries in plaintiff's book, Exhibit 'B', which she read to the jury could not have been made at or near the times listed in the book.' Defendants point to the entries in the book showing 284 poults had died by May 4th, the date of the third delivery of poults and the evidence that plaintiff was given a discount of $30.00 when paying for the poults delivered on May 4th, and the evidence of defendants that on May 4th plaintiff was claiming she had lost 27 poults and the discount was to cover loss of 50 poults, and then defendants pose the questions: 'If appellee accepted $30.00 on May 4th for the 27 poults which she then claimed had died, is it likely that at that time she had written in her private book, Exhibit 'B', the death of 3 poults on April 27th, 18 poults on April 28th, 36 on April 29th, 29 on April 30th, 53 on May 1st, 51 on May 2nd and 46 on May 3d * * *? If she had made entries in her book showing the death of 238 poults by the end of May 3d, would she have accepted 500 more poults on May 4th?' The trouble with this argument is that it is based on plaintiff's version of the May 4th incident which was denied by defendants. Plaintiff testified she was taking the last delivery on a prior order placed in the early spring of 1943 for 3000 poults. She further testified: 'When Mr. Hackert made the delivery on May 4th I didn't tell him that 27 poults had died. I gave him the full amount. He didn't say that he would allow me credit for 50 poults which would be the normal death loss on the last bunch of turkeys. I paid for the May 4th, 1943 delivery with a check in the amount of $275.00. He did not state that I was getting an allowance of $30.00 for the turkeys that I claimed had died.' She went on to testify that she told defendant at this meeting on May 4th that 'Dr. Killips said his poults were sick' and she asked him what he was going to do about it and she understood him to say 'he would come down and see them later and see how many more would die.'

With these two versions of the May 4th incident it is obvious plaintiff's argument is not based on 'undisputed facts (that) clearly establish that no such entries appeared in the book Exhibit 'B' on the 4th day of May, 1943.' It is based on disputed testimony and the question was for the jury.

Under the rule previously stated we hold the book Exhibit 'B' would, under the record, have been admissible and therefore no reversible error resulted from the witness reading the entries in connection with her testimony.

II. Plaintiff testified that she went to defendants' hatchery on May 22, 1943 and told them that the poults she had received had pullorum, and that she showed defendant Mr. Hackert a letter identified in the record as Exhibit 'C' and that he read the letter. Plaintiff offered the letter Exhibit 'C' in evidence for the limited purpose of notice. The letter dated May 17, 1943 appears to be a copy of a letter sent by a Kansas City laboratory to Dr. Killips, plaintiff's veterinary, who had sent some of her poults to the laboratory. The trial court, over defendants' objection that the letter was incompetent, irrelevant, immaterial, and hearsay, admitted the letter 'for the purpose of showing notice and for no other purpose.' After both sides had rested defendants moved that the Exhibit 'C' be withdrawn. The trial court in ruling on the motion stated that there were statements in the letter that he felt should not go to the jury. The court's ruling was that the letter would be withdrawn but that the court would 'formulate an instruction with reference to the letter that will cover the notice proposition.' In instruction 5 the court told the jury 'that there had been admitted in evidence for the purpose of showing notice a letter identified as exhibit 'C' bearing date of May 17, 1943 and directed to Dr. H. Killips, a witness for the plaintiff in this case containing statements as to the claim of the plaintiff that the poults in question were afflicted with the disease of pullorum.' The instruction went on to tell the jury that notice was required, sec. 554.50, Code 1946, I.C.A., under plaintiff's claim and again caution that the letter had been admitted on the theory as stated by plaintiff that it was delivered to the defendants on or about May 22, 1943 and was admitted solely for the purpose of showing notice, but the letter itself would not be submitted for it contained 'much incompetent and irrelevant matter.'

Defendants argue the court erred in admitting the letter Exhibit 'C' in evidence and erred in giving an instruction to the jury containing part of the...

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