Radtke v. Taylor

• Decision Date: 14 November 1922
• Citation: 105 Or. 559,210 P. 863
• Parties: RADTKE v. TAYLOR.
• Court: Oregon Supreme Court

210 P. 863

105 Or. 559

RADTKE v. TAYLOR.

Supreme Court of Oregon

November 14, 1922

In Banc.

Appeal from Circuit Court, Umatilla County; T. E. J. Duffy, Judge.

Action by F. B. Radtke against Moses Taylor. Judgment for plaintiff and defendant appeals. Reversed and remanded.

This is an action brought by F. B. Radtke against Moses Taylor, to recover $64.83, the alleged value of goods, wares, and merchandise claimed to have been sold by the firm of Fix &amp Radtke, and delivered on and between October 4, 1916, and March 31, 1917, to the defendant at his special instance and request. The defendant answered by denying that he had purchased any of the articles. A jury returned a verdict in favor of the plaintiff for the amount demanded by him; and the defendant appealed from the consequent judgment.

Homer I. Watts, of Athena (E. C. Prestbye, of Athena, on the brief), for appellant.

Edward J. Clark, of Pendleton (Peterson, Bishop & Clark, of Pendleton, on the brief), for respondent.

HARRIS J. (after stating the facts as above).

The plaintiff has been engaged in the general merchandise business in Athena since about 1910. Prior to March, 1918 the store was owned and conducted by Albert Fix and the plaintiff as partners under the firm name of Fix & Radtke but upon that date the plaintiff acquired the interest of his partner in the store, as well as the outstanding accounts, including the alleged account against Taylor. The plaintiff has acted as manager of the store during the time he has been "operating this store," and one of his duties has been to collect the accounts. The plaintiff testified that he kept the books "all this time," although he also stated: "Since I took it over personally (in 1918) my wife sometimes helps me out." In other words the plaintiff alone, and without help, kept the books until 1918, when he acquired the interest of his partner.

The defendant had been trading at the store prior to October, 1916, "and running accounts there year after year for several years;" and "he had been coming in promptly each fall and paying off his bill in full."

The defendant had a housekeeper, but there is no evidence tending to show that any other person lived in his house or was a member of his household. According to the testimony of the plaintiff, "it was not customary for him (Taylor) to do the trading there," thus implying that the trading was done for Taylor by some other person or persons; but there is no evidence tending to indicate what other person or persons did the trading except some evidence indicating that the defendant's housekeeper may have done some trading prior to October, 1916.

Under date of October 13, 1916, the defendant gave to the partnership a check for $198.76, which, according to the defendant, paid the account to that date; but, according to the plaintiff, it paid the account to October 1, 1916. About a year after the delivery of this check the defendant received a statement from the partnership showing an indebtedness of $64.83 for goods claimed to have been purchased on and between October 4, 1916, and March 14, 1917. The defendant says that the next day after receiving the statement he went to the store and told the plaintiff that he had not purchased any of the items, and was not indebted for them.

The defendant testified that when he delivered the check in payment of the account up to October 13, 1916, he told Radtke "I was done with him," because of overcharges made for certain items; and the defendant also testified that he was never in the store after that date until he went there upon receiving the statement in 1917. The defendant says that he never authorized any person to buy goods at the store on his credit; and the housekeeper testified that she was never in the store after October 13, 1916, and that she never sent "any one else to his store after that time for any goods." The plaintiff remembered about the defendant being in the store and signing a check, and recollected that the defendant called at the store in 1917 after receiving the statement; but he did not remember having seen Taylor in the store at any time between these two occurrences, although Taylor could have been in the store and the plaintiff not have seen him. When asked whether he remembered letting Taylor have any of the items in controversy, the plaintiff answered: "No: I can't remember that he got them personally; I can't swear to that." The plaintiff also stated that he had no recollection of Taylor himself getting any of the goods, "because it was not customary for him to do the trading there."

It is important to know the system of bookkeeping employed at the store. The items of each sale were entered on slips made at the time of the sale. At the end of each day these items were transferred to a loose-leaf daybook, and at the end of each month the total amount of sales made to a given customer were entered in a ledger. The slips were not "any part of the books" as kept by Radtke, although the slips "were filed away for two years, and after that destroyed." When the items were transferred from the slips, two sheets of paper and a carbon paper were used, and thus the entries were made in duplicate. The carbon duplicate was retained, and became a part of the daybook, and the lead pencil or pen and ink duplicate was sent to the customer. The plaintiff testified that the lead pencil or pen and ink duplicate sheets containing the list of items in controversy were sent to the defendant, but there is no evidence giving any information as to when these duplicates were sent to customers, or to Taylor, if any were sent to him. The daybook is the only book in which may be found an itemized statement of the account with any given customer, and there is no other itemized record of such account at any time except the slips, which, as already explained, are destroyed at the end of two years. This action was commenced on May 13, 1920. The trial occurred on October 15, 1921, or after the destruction of all the sales slips. Six pages of the daybook, purporting to show the articles sold on and between October 4, 1916, and March 14, 1917, the value of the articles, and the specific dates of such sales, were received in evidence over the objection of the defendant.

The defendant contended at the trial, and he still contends, that the sheets from the daybook were incompetent, not the best evidence, and hearsay, and that "no proper foundation has been laid for their reception in evidence." If these sheets from the daybook were improperly admitted, the judgment must be reversed, because without the daybook there is no evidence to sustain the judgment. The defendant twice requested the court to direct a verdict for him. One of these two requested instructions was based upon the ground that "there is no proof of delivery of any of the goods included in the alleged account of the defendant."

The record made by the defendant calls for a decision as to the foundation necessary to be laid for the reception of a shopbook; and it likewise becomes necessary to inquire into the nature and effect of shopbooks considered as evidence. It should be remembered that there is no evidence that the books were correctly kept except such inferences as may be drawn from the defendant's testimony describing the system of bookkeeping which was employed, including an explanation that in transferring the items appearing on the slips "onto" the daybook, "they were taken one by one and entered under each man's account," and except the further circumstance, if it be evidence, that the defendant had in the fall of each year settled his previous annual accounts in reliance upon the books kept by the partnership. It is possible to infer from the record that the partnership had clerks; but, if the firm did employ clerks, the evidence fails to inform us about the number employed, or whether they were living at the time of the trial, or where they were, if living. The entries made by Radtke were transferred by him from the slips; and, for aught that appears in the record, at the time of making the entries he may have had no knowledge whatever of any of the transactions except such knowledge as he acquired from an inspection of the sales slips. If the sales were made as alleged, all of them may have been made by Fix or by one or more clerks without any knowledge of any of the transactions on the part of Radtke except as he learned of them from the sales slips.

When considering the origin, development, essentials, scope, and application of the shopbook rule we must at all times remember that this rule must not be confused with the rule which permits the use of writings to refresh the memory, nor with the rule which permits the reception of a writing made by a third person or by a party, and containing an admission against interest, nor with any rule which allows the use of a writing to corroborate or contradict the testimony of some witness, nor with that comprehensive rule of the common law which permits written entries made by deceased persons in the usual course of professional or official business, or in discharge of some duty. Friendly v. Lee, 20 Or. 202, 204, 25 P. 396; Butler v. Cornwall Iron Co., 22 Conn. 335; 40 Law Bulletin, 215; 12 Bench and Bar, 14; Ridgeley v. Johnson, 11 Barb. (N. Y.) 527; 10 R. C. L. p. 1171, § 371; Zang v. Wyant, 25 Colo. 551, 56 P. 565, 71 Am. St. Rep. 145. Although some of these rules which are to be distinguished from the shopbook rule have some features which also belong to the latter, the shopbook rule possesses characteristics, historical or inherent, which serve at all times to differentiate it from the other rules.

It will be especially helpful to a correct understanding of the modern application of the...