William Taylor Sons Co. v. Burton.

Error proceedings were instituted in this court seeking a reversal of the judgment of the municipal court, which found in favor of William J. Burton, the defendant. It appears that William Taylor Sons Co., the plaintiff corporation, entered suit against the defendant on an account for merchandise sold to the defendant's wife. The defendant filed an answer denying specifically the material allegations of the petition, and, further answering, alleged that the merchandise was never sold to the defendant, and that the items enumerated in the account were not necessaries.

After the plaintiff's opening statement, the defendant moved for judgment on the pleadings and opening statement. The motion was overruled by the trial court. To substantiate the allegations of the petition the plaintiff called the defendant for cross-examination. He testified that his name was William J. Burton, that he was married to Gladys Thayer Burton in 1924, and lived with her until the time of her death in 1929, Plaintiff then introduced into the record various letters purporting to be in the handwriting of defendant's wife, which handwriting was substantially identified as that of defendant's wife. To further prove its case, the plaintiff offered in evidence the ledger account, itemizing the merchandise sold to the defendant's wife. This was objected to by the defendant on the ground that the ledger was not a book of original entries, and therefore not competent evidence without the introduction of the original sales slips showing the purchase of each item. The motion was overruled by the court. At this point the plaintiff rested its case.

The defendant testified in his own behalf that he had lived at various addresses with his wife at the time of his marriage in 1924 until her death in 1929; that he did not remember any of the items in the account as ever having been used in his home; that he was accustomed to accompany his wife on shopping expeditions and helped her buy various merchandise; that his wife had a separate bank account, and that he also had a joint bank account with his wife; that he was accustomed to sign blank checks, his wife filling in the amount needed; that he could find no record at home regarding any bills or statements from plaintiff; that to his knowledge his wife, Gladys Thayer Burton, never maintained a charge account with plaintiff company during the years of his marriage to her, and never at any time had his consent to carry such an account; that he was accustomed to pay cash for all his purchases; and that during the time of this account, and up to the time of his wife's death, she had sufficient money of her own with which to pay her own bills. Further evidence was offered by defendant's witnesses corroborating the defendant's testimony. Thereupon defendant's counsel renewed their motion for judgment on the pleadings on the opening statement of counsel, and further moved that the ledger exhibits be stricken as inadmissible evidence. These motions were overruled by the trial court. Thereafter, at a further hearing before the trial court, and after argument of counsel, the trial court reversed its former ruling and sustained the defendant's motion to strike the ledger exhibits of the plaintiff, holding that the same were secondary evidence and inadmissible without the supporting evidence of the original sales slips showing each purchase.

It is of some importance at this point to state that the record shows that in the regular course of its business the sales slips were destroyed by the plaintiff corporation after a lapse of two years.

No further evidence being offered, the court rendered judgment in favor of the defendant. An exception was duly noted.

On the question of the exclusion of the ledger from the evidence there are two inquiries before this court: (1) Are the plaintiff's ledgers admissible as primary evidence under the book account or regular entry exception to the hearsay rule without the introduction of the original sales slips covering each item entered on the ledger? (2) Are the plaintiff's ledgers admissible as secondary evidence without the introduction of the original sales slips where such sales slips have been destroyed in the usual course of business?

In the leading case in Ohio, Leonard, Jr., v. State, 100 Ohio St. 456, 127 N.E. 464, the court held: "``Shop books' kept by a cold storage warehouse company, containing original entries made by such corporation through its duly authorized officers or agents, in the regular course of its business, are competent as evidence, when identified and verified by the oath of a witness competent to testify."

The language of the Supreme Court found in the opinion indicates clearly the liberal tendency of our courts toward the admission in evidence of mercantile books. The court said, at page 462: "Originally the business of the country was all done by the individual man. He was his own superintendent, manager, foreman, clerk, cashier, bookkeeper, receiving and disbursing agent. * * * But, today it is otherwise. The corporation is largely doing the business of the country. It is made up of an innumerable variety of managers, foremen and clerks and employes, each having certain duties and functions to perform in connection with the common enterprise, and making and preserving a record of its business transactions.

"Courts of law and equity must know as judges what they know as men. Common, everyday experience must not be ignored to satisfy some merely technical rule, and the several rules of evidence must be so adjusted and adapted to our changing business and commercial life as the nature and the necessities of the case require for the safe and successful conduct of such business."

It will be seen from the language above quoted that the Supreme Court was inclined to consider the necessities of the case. There is a distinct tendency to relax the rules of admissibility of books of account in recognition of the fact that it is required by commercial necessity. 4 Jones Commentaries on Evidence, 3290.

In 3 Wigmore on Evidence (2d Ed.), Section 1558, the author lays down the following rule: "The general rule requiring the production of the original of a writing, here as elsewhere, must be satisfied; i.e. the entry offered must be an original * * *. A ledger, though otherwise not objectionable, will usually not be the first book entered up; nevertheless, if the first book be in fact kept in ledger form, it will be none the less admissible. Furthermore, the record admissible is one consisting of a regular series; hence, the first regular and collected record is the original one, and it is immaterial that it was made up from casual or scattered memoranda preceding it."

3 Wigmore on Evidence (2d Ed.), Section 1522:

"* * * In the typical case of entries made systematically and habitually for the recording of a course of business dealings, experience of human nature indicates three distinct though related motives which operate to secure in the long run a sufficient degree of probable trustworthiness * * *

"The habit and system of making such a record with regularity calls for accuracy through the interest and purpose of the entrant * * *.

"Since the entries record a regular course of business transactions, an error or mis-statement is almost certain to be detected and the result disputed by those dealing with the entrant * * *.

"If, in addition to this, the entrant makes the record under a duty to an employer or other superior, there is the additional risk of censure and disgrace from the superior, in case of inaccuracies."

Further quoting from Section 1523: "The first general requirement is that the entry must have been made in the regularcourse of business."

Section 1525: "The entry offered must of course be a part of a system of entries, not a casual or isolated one."

Section 1526: "The entry should have been made at or near the time of the transaction recorded."

There is a scarcity of authority in Ohio directly bearing upon the question of admissibility of the ledger. Generally speaking, it is true that where the testimony fails to show that an account book is a book of original entries it should not be received in evidence. Baxter v. Leith, 28 Ohio St. 84, 89.

Our attention is challenged to the case of Burr v. Shute, 2 C.C. (N.S.), 343, 14 C.D., 62, which holds that a ledger containing a correct transcript from account books of original entry is admissible in evidence after proof that account books are destroyed and that the transcript therefrom was correctly made as to the property and amount sold and the price thereof. To the same effect, see Kennedy v. Dodge, Admr., 19 C.C., 425, 10 C.D., 360.

The ledger which the plaintiff offered in evidence satisfied all the requirements so as to bring it within the exception of hearsay rule. The plaintiff's ledger undoubtedly became the original book of regular entry. It appearing in addition that the sales slips from which the ledger entries were made up were destroyed in the regular course of business, there is a further reason for the competency of the ledger in evidence.

We are of the opinion that the trial court was in error in striking the ledger of plaintiff from the record and in holding that the same was inadmissible.

Was there prejudicial error in the final judgment of the court rendering judgment in favor of the defendant?

In the view of the unrefuted evidence of the defendant that he had at no time authorized the opening or carrying on of the account with the plaintiff corporation, that he had furnished his wife all the cash she needed, and that he can find no record of any bills embracing the items of the plaintiff's claim, we are of the opinion that the decision of the Supreme Court in Tille v.Finley, 126 Ohio St. 578, 186 N.E. 448, is in point, and we conclude that no prejudicial error occurred in the erroneous exclusion of the ledger from the evidence. Quoting from the syllabus:

"1. A husband is not unconditionally liable for necessaries furnished his wife.

"2. To render a husband liable for necessaries furnished his wife, they must have been furnished on his credit."

The ledger account of the plaintiff appears in the name of Gladys Thayer Burton, the wife, and not in the name of William J. Burton, the husband. The ledger account speaks for itself. It speaks against Gladys Thayer Burton. It does not speak against William J. Burton.

Our conclusion, therefore, is: First, that the trial court committed error in excluding plaintiff's ledger from the evidence, as under the modern rule the ledger is competent on the ground of necessity. Second, that in view of the defendant's unrefuted evidence there could be no judgment rendered against him even though the ledger entries were considered in evidence, because said entries speak for themselves only against the person charged therein, namely, Gladys Thayer Burton. They do not speak against William J. Burton.

In view of the above consideration, the judgment of the municipal court will be affirmed.

Judgment affirmed.

LIEGHLEY, P.J., and McGILL, J., concur.