Lewis v. England

• Decision Date: 20 November 1905
• Parties: LEWIS, AS ADMINISTRATRIX, v. ENGLAND, AS ADMINISTRATRIX
• Court: Wyoming Supreme Court

82 P. 869

14 Wyo. 128

LEWIS, AS ADMINISTRATRIX, v. ENGLAND, AS ADMINISTRATRIX

Supreme Court of Wyoming

November 20, 1905

ERROR to the District Court, Carbon County, HON. DAVID H. CRAIG Judge.

This action was originally brought by Charles Lewis against Mary England, as administratrix of the estate of Richard England deceased, upon an account against the decedent. Upon the subsequent death of the plaintiff, the cause was revived in the name of Ida Lewis, as administratrix of the estate of Charles Lewis, deceased, as plaintiff. The facts are stated in the opinion.

Judgment reversed and cause remanded.

W. R Stoll, for plaintiff in error.

It is well established that the term "book account," no matter where the same is used, has only this legal significance, i. e., it is an account kept in the usual manner in which a man keeps his accounts. Any one may keep his accounts in any way he pleases, and so long as he keeps an account of his business transactions in such a way as pleases him, and so long as that way is applicable to all and is the usual and ordinary method of keeping his accounts, the accounts so kept constitute what is known in law as his book of accounts. (Hay, Ex., v. Peterson, 6 Wyo. 419; Nugent v. Powell, 4 Wyo. 173; Board v Stone, 7 Wyo. 280; 9 Ency. L. (2d Ed.), 877-943; 1 Thomp. on Tr., 401, 840; Wood's Prac. Ev., 139, 409; 1 Greenleaf on Ev. (16th Ed.), 120; 1 Whart. on Ev., 238; 1 Cyc., 496-500.)

Where an account is once established as an account, and that account on its face remains open and bears no evidence of settlement, the burden rests upon the party against whom the account is carried on to show whether the same is paid or settled. (Authorities supra, and Wood's Prac. Ev., 66.)

It is a general proposition that when one writing is complementary or explanatory of another, the two form but one document and both are admissible in evidence. One is explanatory of the other. In the matter of accounts, if one's system of keeping his accounts is such that the day slips, for instance, do not fully set forth all of the facts, or the charges, for instance, do not state whether the same are dollars or cents, and at the same time he keeps other documents as, for instance, ledger slips which are a repetition of the day slips but made in a more thorough and complete manner so that they explain and identify the day slips, the ledger slips are admissible as a part of the system of keeping the accounts which was used by the party, and this upon the principle that the ledger slips so made are complementary to the day slips.

Besides this, the person against whom an account is introduced is always entitled as a matter of right to call for the production of the ledger account, and this even where the day book and the ledger are kept in the most scientific manner.

In the case at bar the slips themselves as well as all other testimony in the case conclusively establish the fact that it was never Mr. Lewis' custom to enter credits upon the day slips, and certain charges were made originally on the ledger slips and not on the day slips. Also for this reason, the ledger slips become complementary to the day slips and are admissible in evidence for this reason alone.

It is equally elementary that an account may be introduced in evidence even though it is kept simply in the form of a ledger account, and not in the usual form of day accounts. (1 Whart. on Ev., Secs. 618, 619, 620, 686; 2 Whart. on Ev., 1103-1105; 9 Ency. L. (2d Ed.), 921, 922; In re McGoldrick v. Traphagen, 88 N.Y. 334; Hughes v. Clark, 109 Ill.App. 107; Montague v. Dougan, 68 Mich. 98; Farley v. Gibbs, 4 N.Y.S. 353; Alling v. Wenzell, 27 Ill.App. 511; Dows v. Naper, 91 Ill. 44.)

N. R. Greenfield, for defendant in error.

If the day slips and ledger slips are to be considered as books of account, they cannot be explained by oral testimony. (Lipscomb v. Lyons, 19 Neb. 511; Martin v. R. R. Co., 1 Wyo. 148; Kennedy v. Ankrin, Tappan 40 (Ohio); Baldridge v. Penland, 68 Tex. 441.) The giving or taking negotiable paper such as notes and checks, is prima facie evidence of payment of debt. (Masser v. Bowen, 29 Pa. 126; Hansen v. Kirtley, 11 Iowa 585; Whisler v. Drake, 35 Iowa 103; Sherman v. Clatter, 40 Tenn. 445; Morse v. Ellerbe, 4 Rich. Law, 600; Jesse v. Davis, 34 Mo. App., 351; Bangher v. Conn, 17 Phila., 8; Shumway v. Reed, 34 Me. 560; Bangor v. Warren, 34 Me. 324; Mellege v. Boston Iron Co., 51 Am. Dec., 59.)

In order to secure the admission of the ledger slips as complementary to the day slips the offer should have been limited to that purpose. (Fitzgerald v. McCarty, 55 Iowa 702; May v. Cross, 95 Iowa 258; Loveringe v. Dayton, Fed. Cas. No. 8288.)

We may admit that there is no law compelling a man to keep his account books in a certain manner, but we insist that in order to recover on his account book in a suit at law, the book must comply with certain well defined and well known rules of law, viz. (1) That the entries relate to articles sold or services rendered in the regular course of business. (Leach v. Sheppard, 5 Vt. 363; Laboree v. Klosterman, 33 Neb. 150.) (2) That it is a book of original entry. (15 Am. Dec., 196.) (3) That it be such a regular and usual account book as explains itself and as appears on its face to create a liability in an account with the party against whom it is offered. (Wilson v. Goodin, Wright (Ohio), 219; Van Every v. Fitzgerald, 21 Neb. 36.) (4) That the entries were made at or about the time of the transaction, and are not a recital of past transactions, in other words they are only admitted on the ground that the entries were a part of the acts they purport to record. (15 Am. Dec., 191-196; Bentley v. Ward, 116 Mass. 333; Griesheimer v. Tanenbaum, 124 N.Y. 650; 30 Am. Dec., 142.) (5) The book must be a record of such entries as are properly a subject of book account; items for cash advanced or money loaned are generally not considered as evidence. (Smith v. Rentz, 131 N.Y. 30; Inslee v. Prall, 23 N.J.L. 457; Security Co. v. Craybeal, 85 Ia.; Hugh v. Hock, 8 Ohio Cir. Ct., 354.)

The case at bar must be measured by Section 3683, Revised Statutes. The case of Hay v. Peterson has construed that portion of the statutes applicable to this case. The following Ohio decisions have also construed that section. Book of account must be book of original entry, contemporaneous with the transaction, and money loaned is not the subject of book account. (28 Ohio St. 84; 24 C. C., 62; 6 Bull., 299; 20 C. C., 287; 3 O. D., 10; 4 C. C., 289; 12 C. C., 574; 8 C. C., 354; 2 C. C. N. S., 343; 19 C. C., 425; 5 O. D., 480; 26 Bull., 265; 5 C. C., 19.)

The manner of keeping accounts in a book of accounts is an important consideration, though the form and construction of the book itself is immaterial, other than as affecting its credibility. (Moore v. Morrise, 1 Penn., 412; Dunlap v. Hooper, 66 Ga. 211; Hooper v Taylor, 39 Me. 247; Boohout v. Shannon, 59 Miss. 378; Cummings v. Nichols, 13 N. H., 420; Irwin v. Jordan, 7 Hump., 167; Bell v. McLeran, 3 Vt. 185.) Another requisite necessary to the admissibility of a party's books of account in evidence in his own favor, both at common law and under the statutes, is that the entries must have been the first permanent record of the matters contained therein. (Fendall v. Billy, 1 Cranch C. C., 87; Dismukes v. Tolson, 67 Ala. 386; Watrous v. Cunningham, 71 Cal. 30; Lovelock v. Gregg, 14 Colo. 53; Moore v. Morris, 1 Pa., 412; Hooker v. Johnson, 6 Fla., 730; Talbotton R. Co. v. Gibson, 106 Ga. 229; Ruggles v. Gatton, 50 Ill. 412; McDavid v. Ellis, 78 Ill.App. 381; Arney v. Meyer, 96 Iowa 395; Shaffer v. McCracken, 90 Iowa 578; U. S. Bank v. Burson, 90 Iowa 191; Security Co. v. Graybeal, 85 Iowa 543; Lawhorn v. Carter, 11 Bush., 7 (Ky.); Hooper v. Taylor, 39 Mo. 224; Cogswell v. Dolliver, 2 Mass. 217; Moody v. Roberts, 41 Miss. 74; Owen v. Bray, 80 Mo. App., 526; Martin v. Scott, 12 Neb. 42; Remick v. Rummery, 69 N. H., 401; Inslee v. Prall, 23 N.J.L. 457; Vosburgh v. Thayer, 12 Johns., 461; Skipworth v. Doyell, 83 Hun, 307; Winne v. Hillis, 91 Hun, 89; Baxter v. Loith, 28 Ohio St. 84; Bishop v. Goodhart, 135 Pa. St. 374; Fulton's Estate, 178 Pa. St. 78; Geiger's Appeal (Pa.), 16 A. 851; Cargill v. Atwood, 18 R.I. 303; Underwood v. Parrot, 2 Tex. 168; Baldridge v. Penland, 68 Tex. 441; Bupp v. O'Connor, 1 Tex. Civ. App., 328; Wyman v. Wilcox, 66 Vt. 26; Hay v. Peterson, 6 Wyo. 419.) Upon the point that a book containing transcribed items of account, taken from the book of original entries, cannot be used as evidence of the correctness of the account, see: In re Houston's Estate, 167 Pa. St. 217; Fairchild v. Dennison, 4 Watts (Pa.), 255; Flato v. Brod, 37 Tex. 734; Price v. Garland, 3 N. M., 285; Woolsey v. Bohn, 41 Minn. 235; Guthrie v. Mann (Tex.), 35 S.W. 710; Clark v. Bullock, 2 N.Y.S. 408. The ledger slips in the case at bar are not admissible in evidence, not coming within the rule of being a book of original entries. (Bk. v. Chaffin, 118 Ala. 246; Bracken v. Dillon, 64 Ga. 243; Stickle v. Otto, 86 Ill. 161; Bk. v. Williams, 4 Ind. App., 501; Estes v. Jackson, 53 S.W. 271; Stetson v. Wolcott, 15 Gray, 545; Cahill v. Hirshman, 6 Nev., 57; Griesheimer v. Tanenbaum, 124 N.Y. 650; Ahl v. Ahl, 176 Pa. St. 466; In re Houston's Estate, 167 Pa. St. 217; Fitzgerald v. McCarty, 55 Iowa 702; Jones v. Henshall, 3 Colo. App., 448.) An entry not of a particular transaction, but what remains due as a balance, does not come within the rule defining original entries. (McClintock's Appeal, 58 Mich. 152; Baldridge v. Penland, 68 Tex. 441.) Entries made from information received or derived from other parties or memorandum should not be admitted. (Goodwin v. O'Brien, 25 N.Y. 203; Clough v. Little, 3 Rich. Law, 353; ...