Jesse v. Davis , 34 Mo. App. 351 ( 1889 )

Gill, J.

This is an action originating in the probate court of Holt county; was appealed to and tried by the circuit court; the plaintiff had judgment, and defendant has appealed to this court. The suit is-founded on a lengthy account of goods sold, composed of a large number of small items, running over a space of about fifteen months.

At the trial in the circuit court the defendant offered in evidence various bank checks made by Dodge, the deceased, to the order of the plaintiff, with plaintiff’s-name endorsed on the back thereof, and all shown to have been paid by the bank. These checks were dated at different times during the running of the account sued on. The plaintiff objected to the introduction of these checks on the ground that the checks did ■ not show that they were payments upon the accounts sued on, and the court sustained the objection and excluded the check from the consideration of the jury. Jn this-we think the court committed error. As the respondent’s counsel furnished no brief or argument here in the case, we cannot understand upon what theory these papers were excluded.

It is true that these checks may have related entirely to other transactions than the account sued on. If so then the plaintiff might have so shown. But it would seem that the checks should have been admitted for what they were worth, as tending to show payments made on the account from time to time.

The appellant has also called our attention, in his abstract of the record and brief, to the evidence of the plaintiff introduced to prove the sale and delivery of the goods charged for, and from the showing thus made we are forced to conclude that there was no evidence admitted to justify the verdict, of the jury for seventy-five dollars.

True it is that the witness Harmon testified for the plaintiff that the account was correct, and that the balance claimed of $83.40 was due ; but on cross-examination he admitted that he knew nothing of the different items, except a cash item of five dollars paid to Dr. Saville, and goods to the same amount furnished to the same party on order of Mr. Dodge. A portion of the account purports to have been sold during the month of January, 1886, when Harmon, by his own admission, was not at the store. The only matter of which the witness Dunham testified was that he had seen the family of Dodge get goods at plaintiff’s store ; but could name nothing, nor did he know of the sale of any of the goods named on the bill in suit. One McRow testified to one item of $1.05, and this with the testimony above alluded to is all the evidence upon which the jury gave a verdict for seventy-five dollars.

It is clear that the plaintiff’s books of account could not be used in evidence, and so the court correctly ruled. Neither should the witness be permitted to relate the contents of such books of account. Hensgen v. Mullaly, 23 Mo. App. 613; Anderson v. Volmer, 83 Mo. 403, and authorities cited in opinion.

Appellant’s counsel is in error in claiming that the plaintiif Jesse could not be called as a witness for any purpose. The statute ( R. S. 1879, sec. 4010) has been amended in that regard so as to permit the party living to testify in his own favor “ so far as to prove in whose hand-writing his charges are and when made.” Sess. Acts, 1887, p. 287.

Harmon was not a party to the contract or cause of action in issue and on trial, and he nee was a competent witness.

Judgment reversed and cause remanded.

The other judges concur.