Martin v. Scott

• Decision Date: 12 November 1881
• Citation: 12 Neb. 42,10 N.W. 532
• Parties: MARTIN v. SCOTT.
• Court: Nebraska Supreme Court

12 Neb. 42

10 N.W. 532

MARTIN

v.SCOTT.

Supreme Court of Nebraska.

Filed November 12, 1881.

Error from York county.

France & Sedgwick, for plaintiff.

Scott & Connor and W. W. Giffen, for defendants.

COBB, J.

The plaintiff offered himself as a witness to prove his book of accounts, for the purpose of introducing it in evidence, which offer was refused. He then introduced Mrs. W. H. Martin, his wife, as a witness, who testified, among other things, as follows: “ Question. State whether you knew William McWhirter in his life-time. Answer. Yes. Q. Did you know his condition as to health? A. Yes. Q. You may state how that was; whether he was a healthy man or not. A. He was very delicate, I know. Q. You may state whether you know what the business of your husband is. A. Yes, sir; he is a physician. Q. Now, you may state whether or not you knew of his treating Mr. McWhirter in his life-time. A. Yes, sir. Q. You may state about how long you knew of his treating him. A. I knew of his treating him, after I came, about two years and a half; near that. Q. You may state whether you knew of a book he kept in which he kept his accounts against McWhirter. A. Yes. I knew him to keep the account in a little, small book. Q. I will ask you to state if this is the book, [handing witness a memorandum book.] A. Yes. Q. I will ask you if you know of his keeping this account from day to day or frequently. A. Yes, sir; frequently. Q. I will ask you if you know of this book containing the original entries of the account. A. Yes. Q. You may look at this book and state if you know the account that is kept in it. A. Yes. Q. What is kept in it? A. Mr. McWhirter's account is kept in it. I know it from the doctor's signature in there, and from two or three other little things. I remember some cross marks. Q. You may state who kept the account in that book. A. Dr. Martin. Q. Will you turn to the page in that book where the account is kept? A. That is it, [indicating page.] Q. Mrs. Martin, did you testify as to whether your husband treated McWhirter professionally? A. Yes, he did. Q. Do you know when it was he treated him? A. Yes. Q. State whether you know whether at the time he was treating him he kept any account of what McWhirter owed him for his services. A. Yes, sir. Q. Was that account kept at the time of the treatment? A. Yes, sir. Q. Mrs. Martin, you say you have seen that book before? A. Yes, sir. Q. You may state what it was used for. A. To keep McWhirter's account. Q. Will you state to the jury who kept that account? A. Dr. Martin. Q. Do you know whether he made the entries in that book? A. Yes, sir. Q. Do you know whether these entries were made at the time of the services? Do you know whether these entries in that book were made at or near the time the services were rendered? A. Yes, sir. Q. How was that; were they or not? A. They were made, sometimes just after, sometimes just at the time. Q. Were you personally aware of that fact? A. Yes, sir. Q. Will you state whether or not you know as to whether that book is the doctor's book of original entries or accounts? A. I know it to be a fact that this is the book the doctor kept McWhirter's account in. Q. The question is whether you know whether this is the doctor's book of original entries for those accounts. A. Yes, sir.” Whereupon the plaintiff offered the account-book in evidence. To which counsel for the defendant objected, and the objection was sustained by the court and the book excluded.

There can be no doubt of the correctness of the ruling of the court excluding the plaintiff as the witness in his own behalf, even for the purpose of proving his account-book, The language of the statute (section 329 of the Code of Civil Procedure) is quite unequivocal, and is conclusive of that point. But we think that the book was sufficiently proved by Mrs. Martin, and should have been permitted to go to the jury for what it was worth.

Section 346 of the Code is as follows: “Books of account containing charges by one party against another, made in the ordinary course of business, are receivable in evidence only ander the following circumstances, subject to all just exceptions as to their credibility: First, the book must show a continuous dealing with persons generally, or several items of charges at different times against the other party, in the same book; second, it must be shown by the party's oath, or otherwise, that they are his books of original entries; third, it must be shown in like manner that the charges were made at or near the time of the transaction therein entered, unless satisfactory reasons appear for not making such proof; fourth, the charges must also be verified by the party or the clerk who made the entries, to the effect that they believe them...