Jungkind Photo Supply Co. v. Yates.

• Decision Date: 21 January 1924
• Docket Number: No. 14923.,14923.
• Citation: 257 S.W. 820
• Parties: JUNGKIND PHOTO SUPPLY CO. v. YATES.
• Court: Missouri Court of Appeals

257 S.W. 820

JUNGKIND PHOTO SUPPLY CO. v. YATES.

No. 14923.

Kansas City Court of Appeals. Missouri.

January 21, 1924.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

"Not to be officially published."

Action by the Jungkind Photo Supply Company against J. W. Yates. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Harry Howard, of Kansas City, for appellant.

Lathrop, Morrow, Fox & Moore, of Kansas City, for respondent.

BLAND, J.

This suit, arising in a justice court, is upon an account. The balance alleged in the statement to be due is $220.79. There was a verdict and judgment in favor of plaintiff in the sum of $197.26, and defendant has appealed.

The facts show that in the years of 1917 and 1918 defendant was engaged in the business of a photographer at Camp Pike, Ark., and that plaintiff during this time was engaged in the business of selling cameras and photographic supplies in the city of Little Rock, Ark. Defendant purchased of plaintiff during the time in question and in the forepart of the year 1919 photographic supplies. This suit is for the balance due upon the account defendant had with plaintiff. Defendant filed an answer in the justice court denying that he owed plaintiff any sum of money upon the account stated in the petition and pleading a settlement of the account on' June 14, 1919, by the payment to plaintiff of the sum of $350 and the return of merchandise. Plaintiff claimed that this sum was merely paid upon the account and that there was no settlement. In order to prove the account, plaintiff took the deposition in Little Rock of some of its officers and its bookkeeper. Defendant was not represented at the taking of these depositions. It would appear that plaintiff's books were produced by the bookkeeper at the taking of the depositions. A copy of the account taken from the books by the bookkeeper and identified as such was introduced in evidence and returned with the depositional. The book from which the copy was made did not accompany the deposition. A great number (110) of so-called "charge tickets" were attached to the depositions but not identified. Objection was made to the evidence tending to prove the account and the introduction in evidence of the copy of the account and the charge tickets, but the court overruled these objections and this is assigned as error.

We think the court erred in the admission of this testimony. The testimony of the bookkeeper shows that the account was made up from the charge tickets, but the testimony as to how these charge tickets were made and how the books were kept is meager in the extreme. It may be that the evidence raises an inference that the charge tickets were made in the usual course of business. There was evidence that these tickets were made in triplicate, the duplicate and triplicate being carbon copies of the original; that defendant received the original at the time the sales were made; and that the duplicates and triplicates were retained by plaintiff and the items of the account in its register made from them. There may be an inference that these charge tickets were made by the clerks who made the sales, but there is no evidence as to what became of the copies of the charge tickets when made, except that they finally found their way into the hands of the bookkeeper. There is no evidence as to when the entries were made in the register from the copies of the charge tickets. The charge tickets that accompanied the depositions were not all carbon copies; 20 of them contained lead pencil items and figures and totaled $331.41. As before stated, the testimony is that the original was delivered to the defendant and only the carbon copies were retained by plaintiff.

It is apparent then that the charge tickets made out in lead pencil are not competent testimony, and the court erred in admitting them in evidence. Both the carbon copies of the charge tickets and the register would have been competent evidence had they been made up and kept in the proper manner. The copies of the charge tickets were admissible if they were made in the usual course of business and transmitted to the proper office for entry upon the books contemporaneously with the transactions they represented and in accord with the regular custom and usage of the business. Cudahy Packing Co. v. Railway (Mo. App.) 201 S. W. 596, 598; Milne v. Rd.,...