The Anchor Milling Co. v. Walsh
| Citation | 18 S.W. 904,108 Mo. 277 |
| Parties | The Anchor Milling Company, Appellant, v. Walsh |
| Decision Date | 22 February 1892 |
| Court | United States State Supreme Court of Missouri |
Certified from St. Louis Court of Appeals.
Affirmed.
G. M Stewart for appellant.
(1) The shipping book offered in evidence was one of the books used by Timmons in making the statement of Walsh's earnings during the week, and to the correctness of which Walsh assented by receiving and accepting the statements so made. The entries in the book were, therefore, original evidence as part of the res gestae. It was shown to have been correctly kept, and the entries in it were made in the ordinary course of business. 1 Greenl. Ev. [14 Ed.] sec. 115, and cases cited; Bank v. Culver, 2 Hill, 531; Shepard v Bank, 15 Mo. 141; Smith v. Beattie, 57 Mo. 281; Petteshall v. Turford, 3 Barn. & Ald. 890; Bank v. Michell, 15 Conn. 206; Bank v. Cowen, 7 Humph. 70; Pratt v. White, 132 Mass. 477; Miller v. Shay, 145 Mass. 162; Wright v. Towle, 34 N.W. 578; Montague v. Dougan, 33 N.W. 840; Morgans v. Adel, P. (Cal.) 247; Railroad v. Johnson, 7 S.W. (Texas) 838; Merrill v. Railroad, 16 Wendell, 586. (2) The statements prepared by appellant's cashier or secretary and its superintendent were competent evidence to submit to the jury in connection with the other evidence offered. Railroad v. Johnson, 7 S.W. 838; Ins. Co. v. Weide, 9 Wall. 677. (3) The third instruction, or the one referring to the loss of the papers, given by the court at the instance of the respondent, was clearly erroneous. First. There is not a scintilla of evidence in the record on which to base it. Second. It is totally irrelevant to any issue presented to the jury. The court by its instructions withdrew from the jury every issue of fact save that presented by the testimony of Jones, and that testimony was supported by a book kept by him, which was offered and admitted in evidence. It was, therefore, palpable error to give such an instruction. Skyles v. Bollman, 85 Mo. 31. The instruction was calculated to confuse and mislead the jury, and that respecting matters not in issue. Donahue v. Railroad, 83 Mo. 560; Grier v. Parker, 85 Mo. 107. (4) The fourth instruction given at respondent's request was also erroneous. It, in effect, directed the jury to find for defendant, unless plaintiff had established its case by "a preponderance of evidence." This was manifestly erroneous. Clark v. Kitchen, 52 Mo. 316.
A. R. Taylor and A. A. Paxson for respondent.
(1) The account book was inadmissible in evidence. Weadley v. Tony, 24 Mo.App. 308. (2) The third instruction was properly given. (3) If it cannot be said there is absolutely no evidence upon which the instruction could be predicated, the judgment must stand. Noffsinger v. Bailey, 72 Mo. 216; Brink v. Railroad, 17 Mo.App. 197; Schooler v. Schooler, 18 Mo.App. 78; Gaty v. Sack, 19 Mo.App. 477.
OPINION
This was an action to recover overpayments alleged to have been made by the plaintiff to the defendant. A trial was had before a jury, which resulted in a verdict and judgment for defendant. The St. Louis court of appeals, to which the cause was appealed, reversed the judgment and remanded the cause for error in the instructions. That court, however, sustained the ruling of the trial court in excluding a shipping book offered in evidence by the plaintiff. On this question one of the judges deemed the opinion contrary to Smith v. Beattie, 57 Mo. 281, and for this reason the cause was then certified to this court.
Defendant had a contract with plaintiff whereby he was to receive a specified price for hauling wheat and flour to the mill and a specified price per barrel and sack for hauling flour and other mill products from the mill to different points in St. Louis and East St. Louis. Books were kept at the plaintiff's warehouse, which was about a block distant from the mill, showing the wheat and flour received and shipments made, and these books disclosed the amount of hauling done by the defendant. A Mr. Timmons, who was one of the plaintiff's clerks at the warehouse, made up a statement on a slip of paper at the end of each week, showing the amount due the defendant. The plaintiff's cashier at the mill paid the defendant the amount due as disclosed by these statements. The business proceeded in this way from the first to the latter part of 1883, when the plaintiff caused the books to be examined and concluded that payments had been made to defendant largely in excess of what he had earned. Timmons and defendant left the employ of the plaintiff, and a criminal prosecution and this suit followed.
The shipping book, offered in evidence by the plaintiff and excluded by the court, was made up and kept in the following manner: Orders were sent from the office at the mill to the warehouse to send designated amounts of flour, etc., to designated places. The orders were then entered in the shipping book by Timmons, the shipping clerk, or by Mr. Warren, who had a general supervision over all the business at the warehouse. The orders were then copied into a small handbook for the use of the foreman, who delivered the articles to defendant's teamsters, made a note of the fact and returned the book to the clerk, who made entries on the shipping book, showing, among other things, the delivery of the articles to defendant. Mr. Warren says he always compared the orders with the book when made up, and then returned the orders to the mill office; that he knew the flour and other mill products were delivered to defendant from the information received from the small book, and in some cases from personal observation. These returned orders were lost or destroyed. Timmons, the shipping clerk, was not called as a witness. With this preliminary proof the plaintiff offered in evidence the shipping book, but the court excluded it.
In Hissrick v. McPherson, 20 Mo. 310, plaintiff brought an action on an account for meat sold from day to day. He offered in evidence his daily account book, supplemented by an affidavit that the account was just and correct. This court held that the book, the entries having been made by the plaintiff himself, were not competent evidence, though supported by his supplementary oath. That case was, doubtless, ruled according to strict rules of common law. It constitutes the basis of the ruling of the court of appeals in the case in hand and in some other cases.
When the Hissrick-McPherson case was decided, parties to a suit could not testify in their own behalf. It remains to be seen what is the effect of subsequent legislation and subsequent rulings of this court. Section 1, of chapter 144, General Statutes, 1865, for the first time made parties to a suit competent witnesses in their own behalf. An exception is made where one of the parties to the contract or cause of action is dead or insane, and concludes: "Provided, further, that, in actions for the recovery of any sum or balance due on account, and when the matter at issue and on trial is proper matter of book account, the party living may be a witness in his own favor, so far as to prove in whose handwriting his charges are, and when made and no further."
The next section is a new enactment, and after stating that the court may, where the matter at issue and on trial is a proper and usual subject of charges on books of account required either party to produce his account books, declares: "And no disputed account shall be allowed upon the oath of the party, when it shall appear that he has a book of original entries, unless such book shall be produced upon reasonable request."
The first section is almost an exact copy of section 24, chapter 36, General Statutes of Vermont of 1862; and the second section is evidently modeled after a section in the statutes of that state concerning the action of account. In that state books of original entry are evidence in actions of account in favor of, as well as against, the party by whom kept. Johnson v. Dexter, 37 Vt. 641; Hunter v. Kittredge's Estate, 41 Vt. 359. That court, in construing these sections, takes them in connection with other connected sections of the statutes of that state, while we are to construe them in connection with other sections of our statute laws. The decisions of that court will be of some aid, but not decisive. Where, as there, one or two sections are taken from the body of a statute of another state and incorporated into our statute law on a given subject, we must construe all the sections of our law upon the particular subject together. Now, these sections, as they appear in our statutes, do not, in terms, say that a party to a suit on an account may introduce in evidence his account books; but all this is fairly implied. Why should the living party be allowed to be a witness in his own favor to prove in whose handwriting his charges are and by whom made, as is allowed by the last proviso to the first section, unless to lay a foundation for the introduction of the books?
If a living party to a cause of action may introduce his books in evidence in his own favor, as plainly implied by the proviso then what possible reason can be assigned why he should not do the same thing where both parties to the cause of action on trial are living? And the last clause of the second section...
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