Stoudenmire v. Harper Bros. , 81 Ala. 242 ( 1886 )

CLOPTON, J.

— When the purpose is to have a memorandum admitted in evidence, the witness must be able to testify that he knew its contents when it.was made, and knew them to be true. The original must be produced and must have been made at or near the time of the occurrence of the transaction. A copy of the entries in a book is not admissible, unless the absence of the original is satisfactorily accounted for. When the purpose is to refresh the memory of the witness by reference to a memorandum, it must have been made at or near the time of the occurrence to which it relates; the witness must know it to be correct, and after refreshing his memory, must testify from independent recollection. In such case, the memorandum is not admissible, nor should its contents be made known to the jury, unless called for by the adversary part}-. A witness may refresh his memory by reference to a copy, though the original is not produced, if he can state that the original entry was, when made, a true statement of the facts, and that the memorandum used is a correct copy of the original entries. This rule is founded on convenience and necessity, and is not applicable when the original is in court. — Calloway v. Varner, 77 Ala. 541; Acklen v. Hickman, 63 Ala. 494.

The witness testified, that the memorandum produced was not a copy of the original entries in the books, but a summary or addition of the amounts as entered, and it was not shown when either the copy or the original entries were made. The original books were in court. Under the rules stated, the witness should not have been permitted to refresh his memory by the memorandum, nor counsel to exhibit it to the jury in argument, nor should the jury have been allowed to take it with them in their retirement. The instruction to the jury, that they were not to consider it as evidence, does not free the use of it from injury. If not evidence, it was improper to let it -go before the jury.

The contract of employment being silent, it may be admissible to prove the custom among merchants as to the price at which employees are authorized to purchase goods, in order to assist the jury to ascertain the understanding of the parties ; but as requisite to its admissibility, it must be shown that the plaintiff knew the custom at the time of his employment, or that it had existed sufficiently long to raise the presumption of knowledge. — E. T., Va. & Ga. R. R. Co. v. Johnson, 75 Ala. 596. There being no evidence of plaintiff’s knowledge, or of the length of time the custom had existed, the evidence was improperly admitted.

The plaiutiff offered to prove, that in 1879 and 1880, he and one of the defendant’s clerked for one Eountaine ; that defendants and one Ham bought out Eountaine in 1880, and employed the plaintiff as clerk; that during the year, the defendants bought out Ham, and employed the plaintiff as book-keeper for 1881; and that during these respective employments, he purchased goods from the several stores at original cost, which was known to defendants, and to which they made no objection. The disputed question being the price, which the plaintiff should be charged for goods, as to which there was no express agreement, the contract and dealings of the parties under previous similar agreements, as well as their subsequent conduct and dealings, may be properly considered in determining the intention and understanding of the parties arising from mere implications. If under a similar prior employment, the plaintiff took goods from the store of the defendants at original cost, and continued to do so for four successive years after his employment as book-keeper, without objection, these are circumstances from which the jury might legally infer, that such was the understanding, or implied agreement.

The assignments of error, relating to the charges excepted to, are not urged in argument. It may, however, be remarked generally that the hypothetical facts stated in the instructions do not create an estoppel. They are circumstances from which the jury may draw inferences, or conclusions as to the understanding or agreement of the parties.

Reversed and remanded.