Keystone Cycle Co. v. Jones ( 1899 )

Opinion by

Smith, J.,

The issue in this case involves only the credits to which the defendant was entitled. As we gather from the record of the trial, including the charge, the plaintiff claimed, in gross, $800.70. In reduction of this he admitted credits for commissions and other matters aggregating $274.50. The defendant admitted a balance due plaintiff of $176, for which judgment was tendered and taken. This reduced the balance claimed by the plaintiff to $350.20. The defendant claimed a further credit for $120, which was allowed by the court, reducing the balance, exclusive of interest, to $230.20. The plaintiff obtained a verdict for $221.80.

A letter from the treasurer of the plaintiff company to a collection agency, containing a transcript from the company’s books, of part of its account with the defendant, was offered in evidence by the plaintiff, and received under objection. This letter had been dictated by the treasurer, from entries in the books, but was not compared by him with those entries. The books having been burned before the trial, the letter was offered as secondary evidence. Its admission is the only matter embraced in the assignment of error.

The assignment is defective, in not containing a copy of this letter, as required by Eule 17. We might therefore justly dismiss it on this ground alone. Further, so far as can be determined from the paper-books, it appears to be without merit. The letter merely exhibits the items that make up the aggregate credit for comWssions allowed by the plaintiff. Neither the declaration nor the affidavit of defense is printed in the paper-books; hence we cannot determine from these what was claimed or allowed by the plaintiff, or what was denied or admitted .by the defendant. On trial the defendant raised no question respecting any of the items for which he was credited by the plaintiff, though testifying to other items of commission for which he claimed credit. Nowhere, therefore, does there appear any denial by the defendant of the correctness of the credits thus allowed by the plaintiff and itemized in the letter. In the absence of such denial, it must be assumed that these credits were correct. The letter was, at most, merely explanatory of an admission already made by the plaintiff, in the interest of the defendant, without in any manner qualifying that admission in the plaintiff’s favor. With or without the letter the aggregate credit allowed by the plaintiff, without dissent by the defendant, stood unquestioned. The •only controversy related to credits which the plaintiff had not ■allowed. Therefore, whether the letter was technically admissible or not, its admission could not possibly have harmed the defendant. As we do not reverse for an error which could have done no injury, the assignment must be dismissed.

Judgment affirmed.