Ryan v. Dunphy , 4 Mont. 356 ( 1882 )

Galbraith, J.

The complaint in this action in substance alleges that the respondent, on the 2d of June, 1879, sold and delivered his interest in certain cattle to the appellant, in consideration of which the appellant executed his note and mortgage on the cattle to respondent, and in addition thereto agreed to pay on demand thirty cents a head upon the cattle, amounting to the sum of 8323.20.

The answer of appellant admits the sale, and avers that the note and mortgage were executed and paid, but that the note and mortgage were the only consideration for the interest in the cattle, and denies that he promised to pay any additional sum whatever.

Upon the trial, which was to a jury, a certain memorandum book and entry therein were admitted in evidence. The entry was as follows: “ To 1,079 head of stock cattle at 30 cents per head. June 3, 1879.”

This evidence the appellant moved to strike out on the ground of incompetency. The-court overruled the objection, to which ruling the appellant excepted.

It will be observed that the objection is made on the ground of incompetency. The point of the exception is therefore particularly stated as required by the Code of Civil Procedure. The exception is not, therefore, subject to the criticism made in the argument of respondent, that the point of the exception is not particularly stated.

The next and only question presented for our consideration is whether or not the above entry was properly admitted in evidence. Before the memorandum book and entry were admitted, the respondent testified particularly and positively as to the terms of the contract, without reference to the book for any purpose. He then stated that at the time of the agreement, on the 3d of June, he made an entry in a memorandum book of the transaction. On the 3d of June, 1879, I demanded the cash payment that was to be paid as a bonus. Defendant said, “You need not be in such a hurry about it.” I then took out my book and said to him, “ Shall I make an entry of it ? ” He said, “Yes, make a minute of it; ” and I then did so, and this is the entry so made. The memorandum book and entry therein was then given in evidence.

The defendant testified: “ that he bought the cattle on the 3d of June, but that he did not agree at any time to pay plaintiff thirty cents per head additional to the note and mortgage. That prior to the final agreement there was talk about his paying plaintiff thirty cents per head, but no agreement was made, and that, when the agreement was finally consummated, nothing whatever was said about an addition of thirty cents per head, and that the whole sum he did agree to pay was included in the note and mortgage.”

It will be observed that no foundation was laid for the introduction of the book by any preliminary proof that it was the respondent’s book of original entries. It does not appear that the book was submitted to the inspection of the court. It was not shown that it was a book in which the respondent kept an account of his ordinary business transactions, or a course of dealing with the respondent or other persons. A single sale or transaction entered in the book would not constitute it a book of original entries. Neither was thei’e proof that the respondent kept true and honest accounts. To entitle the entry in the book to be read to the jury, the above matters of preliminary proof were essential. Abbott’s Trial Evidence, p. 322 et seq., notes, and cases cited; 1 Greenl. Ev. (13th ed.) note 2 to sec. 118.

The rules of evidence authorizing the introduction of books contemplate books of account, shop books, and books showing a regular course of dealing with other persons. But the book in question was simply a memorandum book, and. as its name imports, was intended, not for the purpose of entering charges and keeping accounts, but for making memoranda, to aid the memory of the owner. The witness did not require, as is evident from his testimony, the aid of the book to refresh his memory; and it is one of the requisites to authorize the admission of such books that it should appear that no better evidence was attainable. 1 Greenl. Ev. (13th ed.) sec. 117.

It is true that one of the grounds upon which such testimony is admissible, as is claimed in this case, is that the entry, being contemporaneous with the fact, is part of the res gestae. But this is only one of the reasons for the introduction of such books. All the other requisites are essential as preliminary to its introduction. In this case only this single requisite is claimed to appear, and it is not of itself sufficient to authorize the admission of the entry. But it is by no means evident, from the testimony, that the entry was ever a part of the res gestee. The appellant testifies that there was no such agreement, and therefore that no such entry was authorized by him. Whether or not, then, it was a part of the res gestee, is a matter of doubt. The necessity which formerly seemed to require the admission of shop and account books does not now exist in so great a degree in relation to minute and bare transactions, as when the party was prohibited from testifying. He may now be a witness for himself, and refresh his memory from his books. It would seem, therefore, that the former rule in relation to book entries should not be relaxed.

To allow such an entry to be given in evidence, under the circumstances of this case, would afford an opportunity for imposture and fraud, which the policy of the law forbids us to encourage. Such a precedent would, we think, be neither safe nor salutary.

The court, therefore, erred in the admission of the evidence, and the error was prejudicial to the appellant.

The judgment is reversed and the cause remanded for a new trial.

Judgment reversed.