Smart v. Ajax Rubber Co.

Epitomized Opinion

Published Only in Ohio Law Abstract

Rubber Co. sued the Automotive Tire Service Co. upon an account as an original debtor, and Smart et al, as sureties, upon a guaranty signed by them, for the payment, of the indebtedness. The jury returned a verdict for plaintiff and judgment was rendered thereon. Depositions were taken of certain employes of the Rubber Co. and it was urged that these depositions were not admissible because they were taken on behalf of the Rubber Co. and did not specify that its deposition would be taken, under 11534 GC. The trial court admitted the ledger sheets of the Rubber Co., even though they were not books of original entry. In affirming the judgment, the Court of Appeals held:

Attorneys — McKain & Ohl, Youngstown, for Smart et al; Grossman & Grossman, Cleveland, for Ajax Rubber Co.

1. A corporation is a separate, individual entity, distinct from the individuals composing it, and where a corporation is a party to an action, its stockholders are not parties. Therefore, when a corporation which is a party to an action takes the deposition of one of its officers, stockholders or employes, it need not specify in the notice that its deposition Will be taken, under 11534 GC.

2. The strict rules of evidence which have long been recognized as determining the admissibility of a book account, would render these ledger sheets of very doubtful admissibility. They were not the first entries of the items recorded thereon and could not be identified as being a book of original entry by any person having personal knowledge of the correctness of the entries. But the modern tendency is to a more liberal construction of the rules regarding the admissibility of books of account, because it is impossible to keep a book of original entries which would strictly conform to the old rule. The ledger, however, is the first comiplete, tangible, permanent record of the account and the ledger sheets are admissible.