Vinal v. Gilman.

• Decision Date: 24 March 1883
• Citation: 21 W.Va. 301
• Parties: Vinal, Special Receiver, v. Gilman.
• Court: West Virginia Supreme Court

21 W.Va. 301

Vinal, Special Receiver,

v.Gilman.

Supreme Court of Appeals of West Virginia.

Submitted June 20, 1882

Decided March 24, 1883.

(^*Woods, Judge, Absent.)

1. A book of original entry, in which an entry is made in the usual course of business at the time of the transaction of matters within the personal knowledge of the book-keeper, may be used as evidence on the trial of a suit, if the book-keeper be dead at the time of the trial or a non-resident of the State, or if he be unable to be produced as a witness because of any other reason, as for instance insanity, (p. 309.)

2. But if the book-keeper be living and the court is able to enforc his attendance, the book cannot be used as evidence, unless his testimony as a witness also accompanies its production, (p. 312.)

3. Such book is received as evidence not only from the necessity of the case, but also because it is a part of the res gestae and general convenience compels its admittance, and hence it should be admitted without the book-keeper being examined as a witness, whenever the court can not compel this attendance, as when he is a non-resident, (p. 311.)

4. If the book itself be in the possession of a person, who is a nonresident of the State, so that its production can not be compelled by the court, a copy of any such entry in it as answers the above description may be used as secondary evidence when it is proven, that it lias been examined by a witness and compared with the original entry, and proven to be an exact copy. (p. 314.)

5. Such an entry in such a bookstands on essentially distinct ground from a mere private entry of a person; such private entry itself never being evidence, though it may be used by a witness to refresh his memory, (p. 809)

Writ of error and supersedeas to a judgment of the circuit court of the county of Wood, rendered on the 24th day of May, 1881, in an action at law in said court then pending, wherein John F. Vina!, special receiver, was plaintiff, and J. C. Gilman was defendant, allowed upon the petition of said Gilman.

Hon. James M. Jackson, judge of the fifth judicial circuit rendered the judgment complained of.

Green, Judge, furnishes the following statement of the case:

In 1879 John F. Vinal, receiver of the court in a certain case, brought an action of assumpsit against I. C. Gilman in the circuit court of.Wood county for the use of Various items of personal property, which were in charge of said receiver; The declaration contained all the usual common counts, and with it was hied a bill of particulars, which bad among the items of charge three items, with reference to which certain evidence was received and permitted to be given to the jury against the objection of the defendant; and as the only question in controversy before this Court is the question, whether this evidence in reference to these three items should have been permitted to go to the jury, I shall state only so much of the case as will fully show, what are the merits of the controversy in this Court.

These tlrree items are thus stated in the bill of particulars: "May 3, 1879, to the use of one one thousand barrel tank No. 2, from January 15, 1872, eight hundred dollars;" uMay 3, 1879, to the use of one eight hundred barrel tank from January 15, 1872, six hundred and forty dollars," and "May 3, 1879, to the use of one engine and boiler from Banner well from January 15, 1872, five hundred dollars." Pleas of non-assumpsit and the statute of limitations were filed and replied to generally and the issues joined, and on May 15, 1881, the jury found a verdict for the plaintiff for one thousand and five hundred dollars, and on May 24, 1881, the court overruled the motion of the defendant for a new trial and rendered judgment against him pursuant to this verdict.

One bill ot exceptions was taken by the defendant during the progress of this trial, from which we learn, that the evidence ot the plaintiff tended to prove, that the defendant, Gilman, used certain property which was in the charge of the plaintiff, as such receiver, and received the rents of it, and that of the property so used by the defendant, Gilinan, were the items of personal property above named in these three items of the bill of particulars above copied, and gave proof also of the value of the use of this property for the time it was used by Gilinan, while it was in the charge of the plaintiff as receiver, due defendant's evidence tended to contradict this in part at least, and on the evidence produced on each side as to the property named in these three items ot the hill ot particulars, the rights of the parties depended and turned upon whether the property named in these three items was or was not turned over on January 15, 1872, by Gilman and Shakely to B. G. Gompton, agent for the West Virginia Gil and Oil Land Company. And in reference to this question this bill ot exception proceeds as follows:

"The said defendant, further to maintain and prove the issues upon his part, offered his own testimony to prove that some time in the summer of.1871 he was directed by Frank A. Boyd, one of the firm of Wood & Boyd, in the chancery cause aforesaid, to turn over to B. S. Compton, as president of the said West Virginia Oil and Oil Land Company, the said lease and all the property thereon (which statement wras contradicted by the said Frank A. Boyd in his testimony), and also gave evidence tending to show that in pursuance of said direction said defendant testified that he and Shakely had surrendered the said lease and turned over the property thereon save and excepting the one thousand barrel tank, the eight hundred barrel tank and the boiler at the Banner well mentioned in said plaintiff's account filed with his declaration in this cause, to the West Virginia Oil and Oil Land Company, the same being received by one B. G. Compton, an agent thereof, which, as to said exceptions and reservation of said tanks and boiler at the Banner well was denied by said Shakely. And said defendant also gave evidence tending to prove that the said one thousand and eight hundred barrel tanks and the boiler at the. Banner well were not turned over to said company, because the said defendant claimed that he had become the owner thereof by purchasing the same at sales made for taxes assessed against the property of said Wood & Boyd whilst he was in charge ot the same.

"And the said defendant offered evidence tending to prove that at the time of turning over said property to B. G. Compton, agent as aforesaid, schedule in writing thereof was made, signed by said Gilman & Shakely, and delivered to said B. G. Compton as such agent. And the defendant having also offered and given evidence tending to prove that after said time the schedule was in possession of the West Virginia Oil and Oil Land Company, and had been lost or mislaid, the court permitted the defendant to testify before the jury as to the contents of said schedule, the said defendant giving his own testimony to prove that the said schedule contained a statement by items of all the personal property upon said lease except the one thousand and eight hundred barrel oil tanks and the boiler at the Banner well as above mentioned. And it being a fact in dispute, and material to the issue in this cause whether or not the said one thousand and eight hundred barrel oil tanks and boiler at the Banner well were turned over in fact to said West Virginia Oil and Oil Land Company, the plaintiff, in order to rebut the secondary evidence aforesaid offered by the defendant in reference to the number of tanks and kinds of property that were so alleged to have been turned over to said company, was called as a witness and testified as follows:

"'I know B. G. Compton, and also know his hand-writing. He is now and has been for some time a non-resident of this State. The signature to the writing which I here produce dated January 15, 1872, of 'B. G. Compton, late agent of West Virginia Oil and Oil Land Company/ is his genuine signature. He copied it from his book of original entries. I did not see the original schedules signed by Gilman & Shakely of the said property turned over by them to said B. G. Compton, as agent of the West Virginia Oil and Oil Land Company, and do not know of ray own knowledge what property was so turned over. This paper was taken from a memorandum hook which B. G. Compton had in his possession containing the list and inventory made at the time of the transaction of property which the defendant and Shakely were alleged to have turned over to said company, and which memorandum book I saw at the time this paper was copied therefrom, and which list as kept by said Compton in said book I read, and I know this to be an exact copy of the original list of said property 'as kept in said book."

" And thereupon the plaintiff offered to read in connection with his testimony said paper writing to the jury as secondary evidence of the list of property so turned over to said company as aforesaid. To the reading of which paper writing the defendant, by his counsel, objected, and said objection being argued by counsel and considered by the court, was overruled. And the court permitted said paper writing to be read in evidence to and considered by the jury in connection with the testimony of the plaintiff, the same being in the words and figures following, to-wit:

"Invoice of property turned over by Oilman & Shakely:

"INVOICE.

[Copy.] "Jan'y 15, '72.

"Memo. Invoise of Wood & Boyd's property turned over to W. Va. O. and O. L. Co., B. G. Compton, ag't, by Oilman & Shakely: 1 engine and boiler at Banner well. 1 enginehouse, rig, &c.," " 1 bar round iron, 1/4 in. dia., Banner well. 1 50 bbl. tank, No. 1. 1 1, 000 bbl. tank, No. 2. 1 800 " " " 3. 1 140 " " " 4.

1 1, 300 " " " 5, at R R, mouth of Lick Fork.

1 boiler at Cory well.

1 engine at Ohio State Oil Co.

334 ft. 21 in. tubing at Cenkle & Wilde's well.

150 ft. 10 in. gas pipe at McGee well,

1 21 in. wkg. bbl. at...