Pollard v. Turner

• Decision Date: 10 November 1887
• Citation: 35 N.W. 192,22 Neb. 366
• Parties: JUDSON N. POLLARD, PLAINTIFF IN ERROR, v. JEANNETTE N. TURNER, EXECUTRIX OF THE ESTATE OF BYRON H. TURNER, DECEASED, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

35 N.W. 192

22 Neb. 366

JUDSON N. POLLARD, PLAINTIFF IN ERROR, v. JEANNETTE N. TURNER, EXECUTRIX OF THE ESTATE OF BYRON H. TURNER, DECEASED, DEFENDANT IN ERROR

Supreme Court of Nebraska

November 10, 1887

ERROR to the district court for Fillmore county. Tried below before MORRIS, J.

AFFIRMED.

Eller & Sloan and John Barsby, for plaintiff in error.

A. A Whitman, for defendant in error.

OPINION

REESE, J.

This was an action for the value of a windmill alleged to be the property of defendant in error, but wrongfully converted by plaintiff in error to his own use.

Plaintiff in error admitted by his answer that he had the windmill in his possession, but alleged that he was the owner thereof that prior to the death of Byron H. Turner he had purchased the property of him and paid him for it. A trial was had to a jury who, by direction of the court, returned a verdict in favor of defendant in error. Plaintiff in error, who was defendant below, brings the cause to this court by proceedings in error.

The questions presented will be noticed in their order.

Plaintiff in error took the witness stand in his own behalf. It being incompetent for him to testify to the transaction by which it was claimed he purchased the windmill of the deceased, he sought to introduce his cash book, showing the payment of $ 55 in cash, and the transfer of a note on J. B. Wescott for $ 35. His testimony and the book were objected to, and both were excluded.

It is urged that both rulings were erroneous. As we view the case, the decision must depend entirely upon the admissibility of the cash book. If it was incompetent for any purpose, it would follow that the ruling of the court upon the testimony offered for the purpose of identifying it could not be material in the final determination of the case.

The book referred to is proven sufficiently, perhaps, to be the cash book of plaintiff in error. The page introduced in evidence is a list of the items of money paid by him for various purposes. On the upper line occurs the words, "Paid out." It contains no items of charges to any persons, but seems rather to be a memorandum of money paid out, such as the following first three items:

Telephone rent

$ 3.50

Feb. 1, clerk hire

40.00

Feb. 1, freight bills

7.63

Etc.

The only authority of which we have any knowledge--aside from the common law rule, which is superseded--is section 346 of the civil code, which 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 under the following circumstances, subject to all just exceptions as to their credibility: "First, The books 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 own 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 just and true, or a sufficient reason must be given why the verification is not made."

It is not deemed necessary to enter into a discussion of any of the provisions of this section, as this was fully done in the opinion written by Judge COBB in Van Every v Fitzgerald, 21 Neb. 36, 31 N.W. 264. It is sufficient to say that the book referred to was not shown to be the book of...