Murray & Peppers v. Dickens

• Decision Date: 20 December 1906
• Citation: 149 Ala. 240,42 So. 1031
• Parties: MURRAY & PEPPERS v. DICKENS.
• Court: Alabama Supreme Court

42 So. 1031

149 Ala. 240

MURRAY & PEPPERS v. DICKENS.

Supreme Court of Alabama

December 20, 1906

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

Action by Murray & Peppers against Charles C. Dickens. From a judgment for defendant, plaintiffs appeal. Reversed and remanded.

William C. Fitts and D. H. Eddington, for appellants.

Gregory L. & H. T. Smith, for appellee.

SIMPSON J.

This was an action by the appellants (plaintiffs) against appellee (defendant) on the common counts, to wit: (1) Open account (2) account stated; (3) work and labor done; (4) merchandise goods, etc., sold; (5) money paid for defendant; (6) money received by defendant for the use of plaintiffs. And the pleas were the general issue and payment. The matter for which plaintiffs claimed that defendant owed them the amount sued for was for the use of a "steam hoister," which it is claimed did service for defendant under an agreement by which he was to pay $10 per day.

A witness for plaintiffs, Edward Peppers, who was a member of the plaintiffs' firm, testified that plaintiffs did in September, 1903, rent the "steam hoister" to defendant; that defendant was to pay $10 per day; that defendant, Dickens, was to give plaintiffs a statement each Saturday night as to how much the "hoister" had worked during the week; that defendant had been asked frequently for the statement, but had never given any, except a little slip, once, with no date on it; that witness did not see the hoister worked, as it was 10 or 12 miles from Mobile that plaintiffs became dissatisfied because of Dickens' failure to furnish the statement, and changed the terms to a regular renting agreement, but this suit is for the amount due before this change was made; that the hoister was a barge, with a steam engine on it, and was used for pulling logs out of the woods; that plaintiffs' engineer, Bill Steadham, had charge of the hoister; that he left Mobile with it every Sunday evening or Monday morning, and returned Saturday evening, at which time he would report to witness verbally the number of days that the hoister had been worked during that week, and witness would set the amount down in the book (which is offered in evidence); that plaintiffs were paying said Steadham according to the time he worked, and they paid him according to the amounts so set down in said book, and they allowed a half day each week for going to and returning from defendant's place--thus, if he reported 5 days' work they paid him for 5 1/2 days. He also stated that the boat remained through the week at defendant's place, subject to his orders. Bill Steadham testified to the same arrangement; that he made true reports every Saturday night to Mr. Peppers, who entered it at once in the books; also that he would call on Dickens for statements of the work done, but that he never gave but the one, and would tell him that his (Steadham's) word was as good as his (Dickens'); that he knew exactly how many days he worked and how many he lost each week, and so reported it; that when he had steam up, under orders, at Dickens' place, he reported it that way; but witness later stated that sometimes Dickens did not come down to work till late in the day, but, if witness had steam up all day, he reported that as a day's work.

The defendant objected to the introduction of said book in evidence, on the ground that it had not been proved, which objection was sustained, and the book was excluded; and the court then, on motion of defendant, excluded all of plaintiffs' evidence, because it was irrelevant and immaterial, and gave the general charge in favor of the defendant. The chief point of controversy is the action of the court in ruling out the book as evidence and then excluding all of plaintiffs' testimony. The appellants insist that there was error in this action of the court, and the appellee sustains the action, because (1) the book was not regularly kept in the usual course of business; (2) the contents was not corroborated by independent testimony of a person knowing the facts; and (3) the person making the entries did not himself have personal knowledge of their truth.

As to the first objection, the testimony of Peppers shows that the entries were regularly made in a book kept for that purpose, on the reports which were made, in accordance with the requirements of the contract; and, as to the second, the entries are corroborated by the testimony of Peppers and Steadham. As to the third exception, while it is true that the expression is found in the authorities that the person making the entry must have knowledge of the correctness of the item, yet it will be found that in those cases there was no proof by any one else of the correctness of the item, and it would seem, on reason, that if one party testifies that he knew of the correctness of the item and gave it correctly to the other, and the other testifies that he entered it as it was given to him, that that would amount to the same thing as if the party who made the entry should swear that he knew of the correctness of the item. So it is laid down that "entries made by a party from data furnished, or memoranda kept by an employé to assist his memory in making a report or return will be admissible, if supplemented by the oath of the party and the testimony of the servant making the memoranda or furnishing the information." 17 Cyc. 386; Miller v. Shay, 145 Mass. 162, 13 N.E. 468, 1 Am. St. Rep. 449; Smith v. Law, 47 Conn. 431; Harwood v. Mulry, 8 Gray (Mass.) 250; Barker v. Haskell, 9 Cush. (Mass.) 218; Morris v. Briggs, 3 Cush. (Mass.) 342; Smith v. Sanford, 12 Pick. (Mass.) 139, 22 Am. Dec. 415; Hoover v. Gehr, 62 Pa. 136; Post v. Kenerson (Vt.) 47 A. 1072, note 52 L. R. A. 578, 82 Am. St. Rep. 948; Curtis v. Bradley (Conn.) 31 A. 591, 28 L. R. A. 143, 48 Am. St. Rep. 177; Bay v. Cook, 22 N. J. Law, 343, 355. The book in this case was not subject to this objection.

It is next insisted that the book was properly excluded, because the entries were not made contemporaneously with the transaction. In the case of First National Bank of Talladega v. Chaffin, 118 Ala., pages 246, 260, 24 So 80, referred to by counsel for appellee, the books offered in evidence were the ledgers of a deceased party, and there was no proof as to who kept the books, nor as to whether they were correct, or whether original entries or not, and the court very properly said that the books should have been excluded, because said books did not appear...