Seneca Co. v. Doss

• Decision Date: 13 June 1916
• Docket Number: 7572.
• Parties: SENECA CO. v. DOSS.
• Court: Oklahoma Supreme Court

158 P. 575

59 Okla. 149, 1916 OK 678

SENECA CO. v. DOSS.

No. 7572.

Supreme Court of Oklahoma

June 13, 1916

Syllabus by the Court.

Entries in books of account may be admitted in evidence, when it is made to appear, by the oath of the person who made the entries, that such entries are correct, and were made at or near the time of the transaction to which they relate, or upon proof of the handwriting of the person who made the entries, in case of his death or absence from the county, or upon proof that the same were made in the usual course of business.

The sustaining of a demurrer to the evidence upon certain stated grounds will not be disturbed upon appeal, where one or more of the the objections taken to the sufficiency of the evidence, even though other than those deemed valid by the trial judge, are good.

Commissioners' Opinion, Division No. 4. Error from County Court, Pittsburg County; S. F. Brown, Judge.

Action by the Seneca Company against C. O. Doss. Judgment for defendant, and plaintiff brings error. Affirmed.

A. C Markley, of McAlester, for plaintiff in error.

Wright & Boyd, of McAlester, for defendant in error.

MATHEWS C.

This was an action against the surety upon an indemnity bond. The plaintiff company entered into a contract with one E. D Hughes, wherein the said Hughes was employed as a traveling salesman for plaintiff, and the defendant signed the following instrument with the said Hughes:

"To The Seneca Company, Inc., Tiffin, Ohio: The undersigned jointly and severally agree to become responsible in the sum not to exceed $200.00 insuring the safe return of sample case and outfit to the Seneca Company, Inc., which may have been intrusted to E. D. Hughes and protection for any advances or overdrafts and further guarantee that orders taken by E. D. Hughes in the capacity of traveling salesman for the Seneca Company, Inc., be neither forged nor stuffed."

The action was against both Hughes and defendant, Doss, but Hughes was not served, and the same was dismissed as to him.

The action was based upon a verified account for cash claimed to have been advanced to the said Hughes in excess of commissions earned. The defendant answered by verified general denial. At the close of plaintiff's testimony the defendant interposed a demurrer thereto upon three grounds, and the court overruled the same as to the first ground and sustained it as to the second and third; the demurrer being as follows:

"First. Because plaintiff's evidence, if true, is not sufficient in law to prove a cause of action against the defendant, C. O. Doss.

Second. Because the evidence offered by plaintiff shows that after the execution of the guaranty bond sued upon in this action, there was a change of contract between the plaintiff and the said E. D. Hughes, the principal upon said bond, in that the terms of the principal contract to which the bond was collateral was changed in a material matter, so as to relieve the said defendant, C. O. Doss, from further liability.

Third. Because the bond sued upon was collateral to the main contract between the plaintiff and the said E. D. Hughes, and is a bond of guaranty, and plaintiff has no cause of action against the defendant, C. O. Doss, as guarantor, until the plaintiff has exhausted any legal remedy which it may have against the said E. D. Hughes, as principal on the bond and as the original obligor upon the original contract to which said bond is collateral."

We are of the opinion that the demurrer should not have been sustained upon the second and third, but upon the first ground only, which the court overruled. As before stated, the action was upon an open account. The plaintiff rested its case upon the testimony of a single witness, who was the general manager of the company, becoming such on October 1, 1913. Previous to that time he had been a traveling salesman for the company. The employment of Hughes by the company terminated in December, 1912, and the indebtedness sued on had been incurred prior to the time the witness became the manager of plaintiff company.

This witness was permitted to testify over the objection of defendant, as to mailing out statements to Hughes of his account, and as to the correctness of the statements, and the amount due on the account. He was also permitted to identify and introduced in evidence the original drafts drawn by Hughes upon the company and testified as to their payment, and this evidence followed:

"Q. Have you a statement of the ledger account of Mr. Hughes? A. I have. Q. Was this statement taken off the books in your presence? A. It was. Q. Have you verified the statement with the books? A. I have. Q. Is it a correct statement as contained in the ledger of the Seneca Company? A. It is. Q. Has he received all the credit to which he is entitled from the Seneca Company? A. He has."

The defendant not only objected to the reception of the testimony, but at the close moved that it be stricken out on the grounds that the same was hearsay and that the witness had no...