Lemont v. Meindle

Opinion by

Head, J.,

There were originally filed in this court four assignments of error. The first one was withdrawn. The third is in nowise self-sustaining and could support no judgment of reversal. The second, after being amended by leave of the court, raises practically the same question as the fourth to which we will briefly advert. The action was on a book account for goods sold and delivered. It was tried before a judge without a jury. The important question of fact was whether or not the plaintiff had sold his goods to the defendant or to some company or corporation in which the latter was interested. The finding of the trial judge is clear and certainly supported by evidence.

The defendant undertook to offer in evidence a number of stubs of the check book of the company or corporation in order to show that certain payments, for which credit had been allowed by the plaintiff, were made by the company rather than by the defendant himself. In no aspect of the case could the check stubs be admitted as substantíve evidence. Whatever they may have contained were purely ex parte declarations of which the plaintiff had no knowledge and by which he could in no way be bound. The checks themselves which had actually passed to the plaintiff and which had been, presumably at least, endorsed and used by him, might have been competent evidence if the mere fact the company had made the payments was a relevant one. There was no sufficient evidence that the checks themselves were inaccessible or had been destroyed, and consequently no sufficient foundation was shown for the admission of evidence of the contents of those checks. Such proof, however, was not the subject of the offer by the defendant. In any event, the fact the defendant saw fit to make payment through the instrumentality of a company or corporation in which he was interested, in no way tended to establish that the plaintiff’s contract was not with him. The receipt by the plaintiff of payment through any medium the defendant chose to offer did not estop the former from proving his contract was with the defendant and that he was legally liable to pay. The assignments of error are overruled.

Judgment affirmed.