Stephan v. Metzger
| Decision Date | 22 July 1902 |
| Citation | 69 S.W. 625,95 Mo.App. 609 |
| Parties | OTILLIA STEPHAN, Respondent, v. XAVIER METZGER, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Warwick Hough Judge.
AFFIRMED.
Judgment affirmed.
Koehler & Reiss for appellant.
(1) The court erred in permitting the so-called "account" to be used in evidence and further erred in permitting witness to use the so-called "account" for the purpose of refreshing her memory. Milling Co. v Walsh, 108 Mo. 281. (2) The original "account," if any, so kept, could not have been offered in evidence because it clearly appears from the account itself and the evidence, that in part, at least, the entries were not made at or near the time of the purported transaction. Milling Co. v. Walsh, supra; Martin v Nichols, 54 Mo.App. 594; Drug Co. v. Graddy, 57 Mo.App. 41; Cummings v. Nichols, 13 N.H. 420. (3) Books of account, to be admitted in evidence, must be books of original entry. Copies may be used where destruction of books of original entry is shown, and evidence showing copy is clear and undisputed. Milling Co. v. Walsh, supra. (4) Witness should not have been permitted to use the so-called "account" to refresh memory, inasmuch as it was not a memorandum made by herself nor made at the time of the purported transaction. Greenl. Ev. (14 Ed.), sec. 438. (5) The court erred in refusing to give instruction asked by defendant covering defendant's claim that settlement between plaintiff and defendant was had. Defendant is entitled to an instruction covering any theory of defense to which there is some substantial evidence. Stanfield v. Loan Ass'n, 53 Mo.App. 595; Laughlin v. Gerardi, 67 Mo.App. 372; Carder v. Primm, 60 Mo.App. 423; Devitt v. Railroad, 50 Mo. 302.
Virgil Rule and Bland & Cave for respondent.
(1) The loss of the original account having been proven, the court properly permitted exhibits "A" and "B" to be used in evidence where they were shown to be exact copies of the original, and to be used for the purpose of recalling to the memory of the witness the contents of the original where the exhibits were not copies. Milling Co. v. Walsh, 108 Mo. 281. (2) As the uncontradicted evidence shows that the entries in the original account were all made contemporaneously with the transactions, it would have been admissible in evidence. Milling Co. v. Walsh, supra; Martin v. Nichols, 54 Mo.App. 594. (3) Exhibits "A" and "B" having been made by the plaintiff and her daughter acting together, and each seeing that they were correct, and having been made at the time of the destruction of the original, were properly used to refresh the memory of the witness as to the contents of said original.
This action was begun before a justice of the peace in the city of St. Louis, upon the following statement (omitting caption and signature):
Xavier Metzger, to Ottillia Stephan: Dr.
March 14, 1881, to cash borrowed
$ 500 00
July, 1884 to July 3, 1885, to cash borrowed.
September 2, 1885
$ 16 00
$ 12 88
August 20, 1886
February 7, 1887
February 15, 1887
8 00
5 76
December 24, 1889
August 22, 1891
5 40
May 2, 1892
4 05
July 18, 1893
3 68
December 23, 1893
2 50
August 10, 1897
4 00
36
November 15, 1897
In the justice's court plaintiff had judgment for $ 500. Defendant duly appealed to the circuit court where the cause was tried anew before Judge HOUGH with the aid of a jury. A verdict and judgment in that court were given for plaintiff for $ 500.
Defendant appealed in the usual way.
Defendant is the plaintiff's brother. Plaintiff's testimony is that she loaned him $ 500, March 14, 1881, and began an account with him upon a flyleaf in a Bible. It appears that a number of items of account followed the one just mentioned during the course of many years. Each was entered about the time of the transaction recorded. Finally, in 1896 or 1897, the flyleaf was torn out and severed into fragments by the plaintiff's little granddaughter, a child about two years of age. The entries were originally in German. After the leaf was torn, as described, the plaintiff and her daughter (mother of the child) immediately gathered the pieces together and copied the entries thus:
150.00,
March 14, 1881.
50.00,
School, July, 1884.
40.00,
Moline, Ill., 1884.
15.00,
Steamboat picnic, August, 1884.
45.00,
Law suit exp. in Ill., 1884.
28.00,
3 times sick, doctor and drug, 1884.
15.00,
Clothing, November, 1884.
20.00,
4 times picnic, Grown & Stoecklin, 1884.
35.00,
4 Hunting trips, 1885--85.
6.50,
1 pair rubber boots 1884--5.
8.00,
Shoes & Slippers, 1884--5.
65.00,
Daily exp. for school 1884--85.
4.00,
1 pair of pants, May 4, 1885.
5.00,
Underclothing, July 3, 1885.
Marriage License, July 3, 1885.
511.50
150.00
The plaintiff read off the items in German and her daughter wrote them down as above in English on a sheet of paper.
There were some deviations from exact copy. They will be described later. When the copy was obtained by that process the old scraps were thrown in a coalhod and burnt up. No controversy between plaintiff and defendant had then arisen, as plaintiff's evidence goes.
The court admitted in evidence for plaintiff those entries which were testified to be exact copies of the first entries; the other entries the plaintiff and her daughter aforesaid were allowed to use to refresh the memory, but they were excluded as testimony.
Those rulings were against defendant's objection on the ground of incompetency, and exceptions were saved. The copy was called "Exhibit A."
Plaintiff also testified that on the reverse page of the original flyleaf was a list of credits on account of payments by defendant at the dates named; that they had been entered at the time of the payments and were copied in the same manner as the items already mentioned and in like circumstances after the leaf had been torn, except the last two entries which were original, made after the destruction of the flyleaf.
The list of credits was called "Exhibit B" in the trial court. It is as follows:
$ 16.00,
20.00,
20 August, 1886.
15.00,
7 February, 1887.
8.00,
24 December, 1889.
12.00,
22 August, 1891.
10.00,
2 May, 1892.
11.00,
18 July, 1893.
10.00,
23 December, 1894.
4.00,
10 August, 1897.
20.00,
15 November, 1897.
Plaintiff's evidence tended to show that all the original entries were made contemporaneously with the transactions they recorded, except in the instances to be noted further on.
Plaintiff testified that when she loaned defendant the $ 500 he was about to open a saloon; that he agreed to pay her own boardbill and to pay the rent of her abode if she would do his housekeeping meanwhile; and that she agreed to do, and did so.
The credit of $ 350 (July, 1884) in the statement filed before the justice was part of the proceeds realized by defendant when he sold the saloon at the time mentioned, according to plaintiff's testimony.
Plaintiff verified the items in the two exhibits, as will be fully shown hereafter.
The last item of loan to defendant, plaintiff declared was of date July 3, 1885, about the time of defendant's marriage. The last item of credit given defendant in account was dated November 15, 1897. The main item (the first) in plaintiff's account, as contained in her statement filed before the justice of the peace, was a charge for cash borrowed ($ 500) of which part ($ 350) was returned by defendant in July, 1884. These two items were treated as one in the copy from the original flyleaf entries as a charge against defendant of the difference ($ 150) as of March 14, 1881, as may be inferred from plaintiff's own testimony and that of Mrs. Thomas, her daughter. We gather that the first item of the original account was a charge of $ 500, offset in part by the later item of credit by $ 350, and that the first item of "Exhibit A" was a balance.
The items "4 times picnic," "4 hunting trips," "Daily exp. for school," "1 1-2 year shave and hair cut," were likewise consolidated in "Exhibit A," and were not admitted as evidence under the ruling of the court, though allowed to be used by the parties (who together verified and prepared them) to refresh the memory.
It does not appear necessary to fully recite the other testimony for plaintiff. It tended to support the finding and judgment she recovered.
The defendant positively denied the original loan of $ 500 as asserted by plaintiff, as well as the other alleged loans. His contention was the plaintiff put the $ 500 into his hands to invest for her in a saloon, which he did, and that he fully accounted to her for all of it; that he gave her the earnings of his business to keep for him and received parts of them as he called for them. He contradicted plainti...
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