Rose v. Rubeling

• Decision Date: 18 January 1887
• Citation: 24 Mo.App. 369
• Parties: PETER ROSE, Respondent, v. PAUL RUBELING, Appellant.
• Court: Missouri Court of Appeals

24 Mo.App. 369

PETER ROSE, Respondent,

v.PAUL RUBELING, Appellant.

St. Louis Court of Appeals, Missouri.

Jan. 18, 1887.

APPEAL from the St. Louis Circuit Court, W. H. HORNER, Judge.

Reversed and judgment.

E. A. B. GARESCHÉ, for the appellant.

T. J. ROWE, for the respondent.

THOMPSON, J., delivered the opinion of the court.

This action was brought before a justice of the peace, to collect a small merchant's account. On trial anew in the circuit court, before a jury, there was a verdict and judgment for the plaintiff. It is to be regretted that we have to reverse a judgment of the circuit court in a case of this kind.

From the evidence it would seem that the plaintiff is a wholesale dealer or jobber in meats, selling them to retail butchers, and that the defendant was a retail butcher. Each party kept what is claimed to have been an account, and the controversy grows out of a difference of opinion between them as to the amount really due. The defendant tendered, before the justice of the peace, the amount admitted by him to be due, but the jury have returned a verdict for a larger amount in the circuit court.

I. The first error assigned is, that the trial court admitted in evidence a book of accounts, kept by the plaintiff, which was not a book of original entries. This error is not well assigned. The court did not admit in evidence any book of accounts, nor was any such book offered. The plaintiff brought into court such a book, and from the entries therein he testified categorically to the sales of meats to the defendant, charged in the various items, giving the amounts, times, and prices. We infer from the bill of exceptions that he ostensibly used the book to refresh his memory; and it is well settled that a witness may use a memorandum to refresh his memory, although it is not in his own handwriting or made by himself, and although it may be a copy from some other book. 1 Whar. on Ev., sect. 516; Henry v. Lee, 1 Chit. Rep. 124; Commonwealth v. Ford, 130 Mass. 64; Davis v. Field, 56 Vt. 426; Lawson v. Glass, 6 Col. 134; Berry v. Jourdan, 11 Rich. L. 67.

II. The next error, that the court refused, at the close of the plaintiff's evidence, an instruction to the effect that the plaintiff could not recover, is not well assigned, because this objection was not renewed in the defendant's motion for a new trial. If this objection had been thus saved, it would have been available, because it is clear upon this record that at the close of the plaintiff's evidence he had failed to make out his case, and that his case was not helped out by the evidence given by the defendant. Although the plaintiff had testified in general terms to the delivery of the items of meat charged for in the book which he apparently used to refresh his memory, yet on his cross-examination it appeared that all of this meat was not delivered by himself, but that a part of it was delivered by a boy in his employ, and that he had no personal knowledge of the delivery of the portions, which were delivered by the boy, but that he weighed out to the boy a certain quantity of meat to deliver to several customers on his rounds, and concluded that the boy had made his deliveries correctly, provided the boy's memoranda of his deliveries, which...