Moynahan v. Perkins

• Decision Date: 07 May 1906
• Parties: MOYNAHAN v. PERKINS.
• Court: Colorado Supreme Court

85 P. 1132

36 Colo. 481

MOYNAHAN v. PERKINS.

Supreme Court of Colorado

May 7, 1906

Appeal from District Court, Teller County; John T. Sthumate, Judge.

Action by Charles J. Perkins against T. J. Moynahan. From a judgment for plaintiff, defendant appeals. Affirmed.

M. B. Carpenter, for appellant.

W. O Temple and S.D. Crump, for appellee.

GODDARD J.

This is an appeal from a judgment obtained by appellee, plaintiff below, against appellant, defendant below, for services as attorney at law. Several errors are assigned, but the only ones argued by appellant are: First, allowing plaintiff, in testifying to the items and charges sued for, to refer to and read from, his books of account; second, allowing proof of an admission made by the then attorney for defendant upon a former trial of this cause.

1. The plaintiff, who was a witness on his own behalf, sufficiently laid the foundation for the admission of his books of account in evidence, but his counsel, electing not to offer them in evidence, examined him in regard to the items they contained and, over a general objection, the witness was permitted to refer to the books to refresh his memory, and read the entries therein. This objection might be disregarded because it specified no grounds, or in any manner suggested to the court any reasons, why the testimony was inadmissible. Ward v. Wilms, 16 Colo. 86, 27 P. 247; Hindry v. McPhee, 11 Colo.App. 398, 53 P. 389. The only reason advanced here in support of this objection is that the witness recollected the greater part of the transactions, independent of the books and there was no necessity to refer to them. As we have stated, the foundation was sufficiently laid for the introduction of the books themselves, and we are unable to perceive any material difference between admitting them directly in evidence, and allowing the witness to refer to them to refresh his memory, or to read the entries therein to the jury. That 'the original entries, if shown to have been correctly made, might have been read in evidence,' is decided in Bonnet v. Glattfeldt, 120 Ill. 166, 11 N.E. 250, cited by appellant.

2. H C. Hollister, who took in shorthand the testimony upon the former trial, and Mr. Perkins, and Mr. Crump testified that at the inception of the former trial Mr. Perkins, while testifying, was asked the question: 'State whether or not the charges for services rendered as shown on your books of account are just and correct.' To which Mr. Perkins, answered: 'They are.' That Mr. Vanatta, who was the attorney of record for the defendant and conducted the defense at that trial, admitted 'that, if the services were performed, and there was no special contract, and the different items in the bill of particulars furnished are correct, then the charges made for such services are fair and reasonable.' This admission was made with reference to the bill of particulars, or statement of account, containing the items sued for. Defendant objected to the admission of this statement upon the grounds, to wit: '(1) That other services were proved in this trial in addition to these covered by the admission on the former trial; and (2) that Vanatta, who made the admission, is not now attorney of record in this case.' The objection was overruled, with instructions to eliminate all new matters concerning services rendered, and charges made therefore, that were not brought into the former trial. Upon the right to prove admissions made by counsel upon a former trial, Mr. Jones, in his work on Evidence (section 261), says: 'Where an absolute and unqualified admission is made in a pending cause, whether by written stipulation of the attorney or as matter of proof on the hearing, it may be used on a subsequent trial and cannot be retracted, unless by leave of the court on...