Jones v. Henshall

• Decision Date: 25 September 1893
• Citation: 3 Colo.App. 448,34 P. 254
• Parties: JONES v. HENSHALL et ux.
• Court: Colorado Court of Appeals

34 P. 254

3 Colo.App. 448

JONES v. HENSHALL et ux.

Court of Appeals of Colorado

September 25, 1893

Error to district court, Arapahoe county.

Action by Morton Jones, administrator of Aaron M. Jones, against James Henshall and Harriet B. Henshall. Judgment for defendants. Plaintiff brings error. Reversed.

Teller & Orahood, for plaintiff in error.

Browne Putnam & Preston, for defendants in error.

BISSELL P.J.

The administrator of the estate of Aaron M. Jones brought this action against the defendants in error James Henshall and his wife, to recover the sum of $3,000 alleged to be due on a promissory note executed by them on the 2d of June, 1884, and found among the assets of the decedent. The note was payable one year after date, and had been due some five years at the time of Jones' death. There was no controversy about the note, but the defendants set up by their answer a payment during Jones' lifetime. Their first plea was a general one of payment. The second was likewise, in legal effect, an averment of satisfaction, and set up substantially that James Henshall and Jones were the joint owners of the stock of the Henshall Queensware Company. The assets of the company were subsequently sold to other parties for a fixed sum, which was received by Jones, and applied to his own uses. It was averred that the receipt of this money by Jones, and the appropriation of it, amounted to a satisfaction of this $3,000 note, since it was in fact and legal effect an appropriation by Jones of the money which would have been coming to Henshall out of the sale of the stock of the queensware company. The suit thus turned on the proof of this averred payment of the note through the transaction of the sale of the assets of the company. To support the plea, the defendants offered in evidence certain pages of the ledger, which made a part of the set of books of the queensware company, which contained entries tending to show Jones' receipt of the consideration which the purchasers paid for the stock of the company. They also offered divers deeds of certain property which had passed between Henshall and Jones in his lifetime, at about the time of the original purchase of the queensware stock. During the progress of the trial, James Henshall offered himself as a witness, and undertook to testify concerning the matters in dispute. He was allowed to give evidence touching certain matters which were relevant to the issues, and undoubtedly competent if he had the right to give evidence concerning them. As to the exact transaction out of which the note grew he was not permitted to give testimony.

This statement is sufficiently broad to disclose the errors relied upon and the basis of this opinion. It was always true, under the general rules of evidence, that, wherever any matter in issue was supportable by what appeared on the books of a party, those books, if they were books of original entry, could be put in evidence after a sufficient foundation had been laid for the purpose. This rule is not varied by our statute, which is in terms and in form substantially coincident with the common-law rule of evidence on the subject. But under this, as at the common law, a proper foundation must be laid for the purpose, and the books themselves must be competent proof of the matters which they tend to establish. Farrington v. Tucker, 6 Colo 557. Without attempting to decide whether under any circumstances the books of this company would be evidence against the estate in support of the plea of payment, it is manifest that they were inadmissible at the time that they were produced, and under the circumstances existing when they were offered. They were not books of original entry, and no foundation whatever was laid for their introduction, and it is...