Ruegamer v. Rocky Mountain Cementers, Inc.

• Decision Date: 17 November 1953
• Docket Number: No. 2606,2606
• Citation: 263 P.2d 146,72 Wyo. 258
• Parties: RUEGAMER, v. ROCKY MOUNTAIN CEMENTERS, Inc.
• Court: Wyoming Supreme Court

Page 146

263 P.2d 146

72 Wyo. 258

RUEGAMER, v. ROCKY MOUNTAIN CEMENTERS, Inc.

No. 2606.

Supreme Court of Wyoming.

Nov. 17, 1953.

Robert A. Burgess, Casper, for appellant.

W. J. Wehrli, Casper, for respondent.

HARNSBERGER, Justice.

This is a direct appeal by the defendant from a judgment of the district court of Natrona County, awarding plaintiff $5,915.06 in an action wherein plaintiff sued to recover $8,060.31.

It appears that in May of 1950, the plaintiff and one Calvin D. Hembree caused the defendant corporation to be formed and that they intended to and did divide the capital stock of the company equally between themselves; that they agreed to each contribute $2,000 in cash to the corporation, and to perform services for the corporation for some seven months without salary--the company however to reimburse them for any expenses incurred in the company's behalf, and that commencing December 1, 1950, they were each to be paid by the company a salary of $1,000 per month. The plaintiff also alleged they were each to furnish the use of an automobile, but the defendant maintains that the automobiles so furnished were to become the property of the defendant corporation.

On December 1, 1950, the plaintiff, Mr. Hembree and one Deal Jones, entered into a contract, providing that the plaintiff and Hembree should each assign 40 shares of their capital stock to Jones, in order that these three men might become equal owners of the company, and that for such transfer of stock, Jones was to pay $7,500 or $3,750 to the plaintiff and $3,750 to Hembree. This contract also provided that this $7,500 should be loaned by the plaintiff and Hembree to the company, and that the defendant would give to each of them its promissory note in the sum of $3,750, bearing interest at the rate of 8 per cent per annum and payable on or before the 1st day of January, 1953. Thereafter and on December 7, 1950, all of the capital stock of the corporation was issued, the plaintiff receiving 120 shares and Mr. Hembree receiving 120 shares. On February 8, 1951, the plaintiff and Hembree each transferred to Jones 40 shares of their stock, with the result that the plaintiff, Hembree and Jones then owned 80 shares of stock apiece. The money received from Jones was turned over to the company by the plaintiff and Hembree, but the defendant did not deliver its promissory notes to either of these parties as the contract had provided. The defendant denied that this contract had been made with its consent, its knowledge or its approval, and asserted that the money received by the plaintiff and Hembree from Jones was to be applied against their purchase of the stock of the defendant corporation. The defendant also maintained that the plaintiff and Hembree were to receive only one-half of their salary, or $500 a month, in cash, the balance being credited against the amount due for their stock purchase, and that the amounts paid by the plaintiff and Hembree in defraying expenses incurred by them in the company's behalf, were also to be credited against such stock purchase and these items were not to be repaid them in money.

The judgment, while disallowing the expense item for the use in company service of plaintiff's automobile, was silent as to whether the automobiles of the plaintiff and Hembree were to become the property of the company or were only to be furnished for its use, so we must assume that the court found adversely to the defendant on that issue, and it is also evident that the court accepted plaintiff's theory that all amounts due the plaintiff were to be paid in cash rather than credited against his stock purchase, as the court gave the plaintiff judgment for $1,500 for services rendered, $665.06 for expenses paid, and $3,750 for money loaned or a total judgment of $5,915.06.

In substance, the plaintiff testified directly and positively that it was agreed he should receive a salary of $1,000 per month for the period from December 1, 1950 to May 29, 1951; that he had been paid $4,000 on this salary leaving a balance due him of $2,000 which was to be paid him in money rather than credit. The book-keeper however testified that the plaintiff had been paid $4,500, leaving a balance of $1,500. This constituted substantial evidence to support the judgment of $1,500 for service rendered. The substance of the plaintiff's testimony as to the $3,750 was that he made the loan to defendant; that the note evidencing the loan was never given; that the defendant owed him the $3,750 and that this loan was not to be applied against his stock purchase. The receipt of this amount of plaintiff's money by defendant was also corroborated by other evidence, so that there was sufficient evidence to justify the judgment of $3,750. The plaintiff also testified that he had paid for a large number of individual items representing expenses incurred by him in behalf of the company and had not been reimbursed therefor.

From this brief reference to evidence favorable to the plaintiff and supporting the judgment indicating our understanding of the same, it should be apparent that we feel there is no merit in the charge that the judgment is contrary to and not supported by the evidence, nor has the appellant shown us in what way the judgment is contrary to law.

However, appellant complains that a three page list of expense items referred to in his testimony, was improperly received in evidence over defendant's objection that 'it is merely an itemization of what he expended, made after his termination of the company; not the best evidence, for the best evidence would be his original copies, or his original entries that he made in his own books.' In support of his objection to the receipt in evidence of the list, appellant states in its brief--'ordinarily, the only way that an account can be proved is by adducing evidence of the several items contained therein.' This last is practically a quote from appellant's cited case of Silva v. Linneman, 73 Cal.App.2d 971, 167 P.2d 794, 797, which continues--'* * * Oral evidence by individuals possessing personal knowledge of the transactions is the best evidence of the asserted expenditures of an account, * * *.'

Disregarding the fact that it later developed that the plaintiff had not kept any books, when the list was offered, the plaintiff had already testified that he had himself prepared the list as the account of expenses paid by him in behalf of the company during the period from May 1950 to and including May 1951; that the items included $1,517.80 for use of plaintiff's personal car in company business charged for at the rate of 5cents per mile; that the other items totaling $792.51 were expenditures made for the company's good will in the entertainment of the employees of its patrons, and that all of the items of expense were true and correct. This constituted direct oral testimony of an individual having personal knowledge of the transactions and of the expenditures set forth in the offered account, given in proof of the several items shown. 2 Jones Commentaries on Evidence, Second Edition, Sec. 767, p. 1423. By this testimony the list itself became a part of and was incorporated in the plaintiff's testimony. Receiving the list in evidence merely served the court's convenience and it also made available to the defendant an itemized statement for its use in a cross-examination which resulted in the court's disallowing $1,645.25 of the $2,310.31 claimed by the second cause of action.

In Vol. 1, Sixteenth Ed., Greenleaf on Evidence, 545, Sec. 439(d) it is pointed out that although various means and instrumentalities may be employed to communicate a witness' knowledge to a tribunal, nevertheless they must all presuppose a qualified witness to give them testimonial support in order that they become acceptable as evidence, and in Sec. 439(f) the writer notes that thus a writing may form part of a witness' testimony.

In Bradner on Evidence, Second Edition, pp. 469, 470, the author adopts the statement of the court in Howard v. McDonough, 77 N.Y. 592, 594, as follows:

"* * * a witness may make a list of all the items and their values, and he may aid his memory, while testifying, by such list. He must be able to state that all the articles named in the list were seized and that they were of the values therein stated; and he may use the list to enable him to state the items. After the witness has testified, the memorandum which he has used may be put in evidence, not as proving anything of itself, but as a detailed statement of the items testified to by the witness. The manner in which the memorandum, in such a case, may be used is very much in the discretion of the trial judge. He may require the witness to testify to each item separately, and have his evidence recorded in the minutes of the trial, and then the introduction of the memorandum will not be important; or he may allow the witness to testify quite generally to the items and their values, and receive the memorandum as the detailed result of his examination, leaving to the adverse party a more minute cross-examination. * * *" (Emphasis supplied.)

This case is also cited in Vol. III, Wigmore on Evidence, Third Edition, Sec. 754(5), pp. 97, 99, 100, in support of the statement that:

'If by verifying and adopting the record of past recollection the witness makes it usable testimonially, and if by this verification alone can it become so usable, it follows that the record thus adopted becomes to that extent the embodiment of the witness' testimony. Thus (a) the record, verified and adopted, becomes a present evidentiary statement of the witness; (b) and as such it may be handed or shown to the jury by the party offering it.' (Author's italics.)

And the concluding statement of Wigmore on the subject is:

'A few decisions declare that the writing is not 'independent evidence' or 'in itself evidence', but this is to be construed as meaning merely--what no one...