Hanan v. Sanford ( 1914 )

Mr. Justice Moore

delivered the opinion of the court.

The testimony shows that, for several years prior to the time the promissory note described in the action was executed, the plaintiff was engaged in buying for the market cattle, sheep and hogs, which business compelled him to borrow from the First National Bank of Roseburg, Oregon, large sums of money. When a sale of such stock was consummated, the consideration therefor was usually evidenced by a check or a draft which the plaintiff assigned to the bank either in payment of his notes which were held by that banking-house or as a fund against which to draw checks. In referring to such method of preserving a record of his business transactions, the plaintiff testified: “That is the only way I had of ever keeping any accounts straight was through the bank. ’ ’ In explaining why he adopted such a course of keeping a chronicle of his affairs, he further stated upon oath: “Mr. Sheridan told me, ‘Now, I will see that it is all kept straight’; and I left the whole thing with him to see that it was kept straight. I did not understand keeping books.”

One of the controverted items is a memorandum check in Sheridan’s handwriting whereby the bank on October 1, 1901, transferred to its then president $3,000 from Hanan’s account. This item appears in the statements of the account as exhibits to the answer herein. The plaintiff, as a witness, admitted that he received from the bank a copy of a part of the account, containing the entry of that sum. Referring to the memorandum check, he stated upon oath that it had been in his possession but that he had no knowledge of ever having received any benefit or value by reason thereof. He admitted that he received a partial statement of the account, but never noticed the $3.,000 item until this suit was instituted, saying: “I am no bookkeeper myself and I did not understand anything about it. I never got the first part of them accounts so I could get any other bookkeeper to go over that business for me. I was right in the center of it. I did not have either end of it.” He further testified that he never requested the cashier or a bookkeeper of the bank to furnish him a statement of his account, and that such parts thereof as he received were mailed •to him.

The evidence shows that, before the action at law was commenced, Hanan offered to pay Sanford $1,000 down and thereafter to give him $1,000 yearly until the debt was paid, but that the proposition was rejected. Hanan engaged an expert accountant who was given every advantage carefully to examine the books of the bank, and, while they do not in some instances agree with what he claims to be a correct statement of the account, the defendant’s witnesses, who were the bookkeepers and the officers of the bank, explain such discrepancies by attempting to identify deposits made at different times or in variant sums of money.

Sheridan was in an adjoining county when this suit was tried and did not appear as a witness, nor was his deposition taken. Bach party reasonably supposed he would be present and testify and neither should be blamed for his failure in that respect.

No attempt will be made to reconcile or explain the differences that may appear in the accounts of the plaintiff and the defendants. It is believed that the itemized statements mailed by the bank from time to time to Hanan, and to which he made no objection until this suit was instituted, constitute accounts stated and are binding upon him: Nodine v. First National Bank, 41 Or. 386 (68 Pac. 1109). He did not receive all the statements of his account that were prepared by the bank, but from those that were mailed to him when he was at home, accompanied by canceled vouchers, Hanan must have known the general course pursued by the bank in dealing with its customers, in view of wliick. it was incumbent upon Mm to call for these statements when he returned to Roseburg or to write the bank to mail them to him. Because he was not a bookkeeper and could not understand the statements of account which he received did not relieve Mm of the consequences or absolve him from the legal effect of such accounts stated.

It was his duty to take them to some person who could explain them, but, failing in this respect, the-decree should be affirmed, and it is so ordered.

Affirmed.

Mr. Justice Bean, Mr. Justice Eakin and Mr. Justice McNary concur. Mr. Chief Justice McBride not sitting.