T. Barbour Brown & Co. v. Canty

• Decision Date: 21 June 1932
• Citation: 161 A. 91,115 Conn. 226
• Parties: T. BARBOUR BROWN & CO. v. CANTY.
• Court: Connecticut Supreme Court

161 A. 91

115 Conn. 226

T. BARBOUR BROWN & CO. v. CANTY.

Supreme Court of Errors of Connecticut.

June 21, 1932

Appeal from Superior Court, Fairfield County; Arthur F. Ells, Judge.

Action by T. Barbour Brown & Company, commission merchants, against Thomas H. Canty, to recover a balance due for sugar futures bought and sold for account of the defendant. The case was tried to the jury. Verdict and judgment for plaintiffs, and defendant appeals.

No error.

Brien McMahon and Robert N. Wolfe, Jr., both of South Norwalk, for appellant.

Sidney Vogel, of South Norwalk, for appellees.

AVERY J.

On the trial before the jury, a verdict was returned in favor of the plaintiffs for the amount of plaintiffs' claim, with interest. The defendant moved the court to set aside this verdict, and from its refusal so to do, the defendant has appealed, assigning as error the refusal of the court to set aside the verdict, and also certain rulings on evidence.

From the evidence, the jury might reasonably have found that the plaintiffs were commission brokers, selling and buying sugar and other commodities for customers for a commission, and dealing through members of various commodity exchanges. The plaintiffs do not deal in stocks or bonds.

Prior to and during 1928, Herbert Schwartz, a partner in the plaintiffs' firm, was friendly with the defendant, and offered to set up for Canty a credit of $1,000 on the plaintiffs' books whenever he felt like trading in sugar. Thereafter, on October 3, 1928, the plaintiffs accepted an order over the telephone from Canty to purchase, for his account, 50 tons of July sugar, and did purchase the same on the New York Coffee and Sugar Exchange at 2.25 cents per pound. On October 27th, they executed, for his account on that exchange, a purchase order for 50 tons of July sugar at the same price; on November 9, 1928, they sold this contract at 2.27 cents per pound. These transactions showed a profit of $44.80, less a commission of $50 and war tax of 52 cents, or an actual loss to Canty of $5.72. On September 10, 1928, the plaintiffs purchased, by his direction, 100 tons of July sugar at 2.36 cents per pound September 20th, 100 tons at 2.30 cents; and February 19, 1929, 100 tons at 2.38 cents. On April 1, 1929, they sold 50 tons at 1.98 cents and, on the same day, 250 tons at 1.97 cents, showing a net loss to Canty, including commissions and war tax, of $1,999.38: leaving his total indebtedness on April 2, 1920, in the amount of $2,005.10. These purchases and sales were executed on the New York Coffee and Sugar Exchange through a broker by the plaintiffs: and, on the sale of the last sugar April 1, 1929, pursuant to Canty's directions, the plaintiffs actually paid the loss, being the difference between the purchase and sales prices.

The plaintiff in chief produced a witness who testified that a leaf taken from a loose-leaf ledger was the original book of entry showing the Canty transaction, and that he had made up the account on that sheet. He further testified that it was the original sheet, and that it contained the full and only record of the transaction; that there were no other books or sheets in the office showing it. Being objected to as an incomplete record, it was admitted by the court over the objection. If the court was satisfied that the entries on the sheet were made in the regular course of business and contained a complete record of the transaction, and that it was the only book in which the details thereof were first collected together, it was within the court's discretion to admit it without requiring the production of other sheets in the ledger having no bearing upon the matter in controversy between the parties. Hawken v. Daley, 85 Conn. 16, 18, 81 A. 1053: Queen City Savings Bank & Trust Co. v. Reyburn (C. C.) 163 F. 597, 600: Shepherd v. Butcher Tool & Hardware Co., 198 Ala. 275, 73 So. 498, 500; United Grocery Co. v. Dannelly & Son, 93 S.C. 580, 77 S.E. 706. Ann.Cas. 1914D, 489: Wylie v. Bushnell, 277 Ill. 484, 115 N.E. 618, 622; Lewis v. England, 14 Wyo. 128, 82 P. 869, 2 L.R.A. (N. S.) 401, 405; 10 R.C.L. 1178; 22 C.J. 870. It later developed that some of the entries on this sheet were in fact, made from oral statements to the bookkeeper and some from memoranda furnished him by others connected with the firm. The correctness of a ruling on evidence is to be determined by the situation as presented to the court when the evidence was offered. When, later, it developed that some of the entries had been made from memoranda furnished the bookkeeper by other members of the office force, if the appellant had desired to attempt to take advantage of that situation, a motion to strike out should have been made. No such motion was, in fact, made; but on the contrary a partner in the plaintiff firm subsequently testified of his own knowledge to all matters shown on the exhibit. There was no error in the ruling complained of under the circumstances disclosed by the record.

Over objection by the defendant, a witness for the plaintiff was permitted to refresh his recollection by examination of the bill of particulars in the case. There was no error in this ruling. Any memoranda which can in fact stimulate the present recollection of a witness can usually be used whether made by the witness or not; whether it be the original or a copy; or whether made at the time of the events testified to, or not. Neff v. Neff, 96 Conn. 273, 280, 114 A. 126; Turner v. Turner, 90 Conn. 676, 680, 98 A. 324.

The defendant claims that the verdict should have been set aside because the evidence does not disclose that the orders for the purchase of the sugar were actually executed. This claim overlooks the fact that the entries made in the books of a merchant in the regular course of business are evidence of the transactions therein set forth. Gen. Stats. § 5878; Smith v. Law, 47 Conn. 431, 435; Plumb v Curtis, 66 Conn. 154, 162, 33 A. 998. In addition, there was evidence that the plaintiffs actually paid for the...