Weadley v. Toney

• Decision Date: 10 January 1887
• Citation: 24 Mo.App. 304
• Parties: WILLIAM WEADLEY ET AL., Respondents, v. B. TONEY, Appellant.
• Court: Kansas Court of Appeals

24 Mo.App. 304

WILLIAM WEADLEY ET AL., Respondents, v. B. TONEY, Appellant.

Court of Appeals of Missouri, Kansas City.

January 10, 1887

APPEAL from Jackson Circuit Court, HON. JAMES H. SLOVER, Judge.

Reversed and remanded.

The case is stated in the opinion.

W. A ALDERSON and A. YOUNG, for the appellant.

I. The admission of the book of alleged original entries as substantive, distinct and original evidence, and the reading and showing of the same to the jury as such evidence constitute fatal error, for which the judgment of the lower court must be reversed. Field v. Thompson, 119 Mass 152, 153; Burton v. Plummer, 2 Ad. & El. 341; Kent v. Garvin, 1 Gray 148; Gould v. Conway, 59 Barb. 355; Moore v. Meachan, 10 N.Y. (6 Seld.) 207; Humphreys v. Spear, 15 Ill. 275; Williams v. Kelsey, 6 Ga. 365; White v. Wilkinson, 12 La. An. 359; Nichols v. Haynes, 78 Pa.St. 174; Dwinel v. Potter, 31 Me. 167; Godfrey v. Codman, 32 Me. 162; Whitney v. Sawyer, 11 Gray 242; Waggeman v. Petras, 22 Ill. 42; Dodson v. Sears, 25 Ill. 513; Slad v. Nelson, 20 Ga. 365; Paine v. Sherwood, 21 Minn. 240; Ryan v. Dumphy, 5 P. 324. The last ruling of the Supreme Court upon any question is controlling in this court. The former court and the St. Louis Court of Appeals have squarely decided the proposition here presented adversely to the ruling of the trial court. The rule for which we contend is the logical and safe one. Hessrick v. McPherson, 20 Mo. 310; Manion, etc., Co. v. Carreras, 19 Mo.App. 162; Lord v. Seigel, 5 Mo.App. 582; Hanson v. Jones, 20 Mo.App. 595.

II. In submitting to the trial court the newly discovered evidence, every requirement was observed. The new evidence tells the story of the attempt of respondent to fasten on the appellant a debt which was contracted, if at all, by another party. Because of this new evidence alone the appellant should be granted a new trial. State v. Ray, 53 Mo. 345; State v. Smith, 65 Mo. 313; Shaw v. Besch, 58 Mo. 107.

ADAMS & FIELD, and R. T. HOLT, for the respondents.

I. Books of account are evidence of goods sold and delivered from a store. Greenl. on Evid., sects. 117-18, and cases cited; Potter, Adm'r of Potter, 8 Johns. 211; Wilmer v. Israel, 1 Broune (Pa.) 257; Ducaign v. Schreppel, 1 Yates (Pa.) 147; Spence v. Sanders, 1 Bay 119; Young v. Jones, 8 Iowa 222; Smith v. Beattie et al., 57 Mo. 281; Cozzens v. Barrett, 23 Mo. 544; Penn v. Watson, 20 Mo. 16; Briggs v. Henderson, 49 Mo. 531; Anderson v. Vollmer, 83 Mo. 408; Hanson v. Jones, 20 Mo.App. 601; Ford v. Seigel, 5 Mo.App. 582.

II. The affidavit of the party must show that the evidence is new, material and applicable to the issues, and that he has a good cause of action or defence, and that he has used due diligence to obtain the sum, and a different result would probably follow. Richardson v. Farm, 36 Mo. 46; Goff v. Mulholland, 33 Mo. 203; State v. McLaughlin, 27 Mo. 111; State v. Locke, 26 Mo. 603; Shaw v. Besch, 58 Mo. 107.

III. It is within the discretion of the trial court to grant a motion for a new trial when it is grounded on newly discovered evidence. Insurance Co. v. Curran, 45 Mo. 142; Cook v. Railroad, 56 Mo. 303.

ELLISON J.

This action was commenced before a justice of the peace where defendant had judgment, which on a trial anew in the circuit court was annulled, and judgment given for plaintiffs, defendant appealing to this court.

The record before us notes the following occurrence at the trial in the circuit court:

" The plaintiffs then introduced, as substantive and distinct evidence, the order book referred to by their several witnesses, and certain entries in such book were shown and read to the jury as distinct and substantive evidence. Such entries were of goods alleged to have been ordered and purchased by the defendant."

It is of this being permitted over defendant's objection that the chief complaint is made to us.

The question involved here has been much discussed in the English and American courts.

The cases of Price v. The Earl of Torrington (2 Salkeld 285), and Doe v. Turford (3 B. & Ad. 898), are leading English cases on the subject. These cases are justified on the ground that the entry was a minute in writing made at the time when the fact it records took place, by a person since deceased, in the ordinary course of business, corroborated by other circumstances which render it probable that the fact occurred.

In the case first mentioned the entry was by a clerk, in the latter it was by a principal, but in each case the parties making the entries were dead at the time of their introduction in evidence.

In the case before us the entry was made by a clerk alive at the time of its introduction, though preliminary proof was made that the entry was in the regular course of business and contemporaneous with the sale.

The doctrine announced by the English cases has found lodgment in nearly all the courts of the United States. Indeed, it has been carried much further here. It is said in Smith's Legal Cases (Vol. 1, 503), that " it may be taken as settled law of all the states, that entries made in the usual course of business by the plaintiff's clerk, are admissible in evidence after his death, on proof of his hand-writing." And so it is also held, as in Doe v. Turford (supra ), that the entry may be by the principal as well as the clerk.

1 Greenleaf, section 118, says: " In the United States this principle has been carried further, and extended to entries made by the party himself in his own shop books." He states it to be in harmony with the common law, as the entry is only admitted where it is contemporaneous with the fact, and part of the res gestœ . " Being the act of the party himself, it is received with greater caution; but still it may be seen and weighed by the jury."

Does the fact that the party making the entry is yet alive render it inadmissible, when, if he were dead, it it would be legitimate testimony? Greenleaf states, without qualification, that the fact of the death of the party making the entry is not material. He says there are two classes of admissible entries between which there is a clear distinction in regard to the principle on which they are received. One class consists of entries against the interest of the party making them; it not being material when they were made. The testimony of the party himself would, in such case, be the best evidence of the fact, but if he be dead, the entry made by him in the ordinary course of business, and against his interest, is received as secondary evidence in a controversy between third persons." The other class of entries consists of those which constitute parts of a chain or combination of...