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matters stated in it, although it may be said there is no uniform rule governing the reception of such an instrument; and whether memoranda made by a witness contemporaneously with the event they purport to record, when supplemented by the statements of the witness under oath, may be admitted, is open to considerable doubt, elementary writers and courts being about equally divided upon the subject: Bates v. Preble, 151 U. S. 149, 14 Sup. Ct. Rep. 277, 38 L. ed. 106. For instances of admission of evidence of this nature, and that it may be done in this state, see Labaree v. Klosterman, 33 Neb. 150, 49 N. W. 1102; Carstens v. McDonald, 38 Neb. 858, 57 N. W. 757. But it is the invariable rule that the memorandum must be identified. A proper foundation must be laid for its introduction."
In Wisconsin entries made in a book in the usual course of business, contemporaneous with the transactions to which they relate, are made admissible by statute: Kelly v. Crawford, 112 Wis. 368, 88 N. W. 296. In Virginia the court refused to extend the rule of admissibility of books of this class beyond the admission of books of accounts: Barley y. Byrd, 95 Va. 316, 28 S. E. 329.
But where entries in books are not shown to be correct, or to have been made at or near the occurrence of the facts entered, the books are not admissible: Wagar Lumber Co. v. Sullivan Logging Co., 120 Ala. 558, 24 South. 449. In other words, only business entries made contemporaneously with the facts and under a sense of business responsibility are admissible: Ray v. Castle, 79 N. C. 580.
In a few instances the admissibility of written statements have been sought upon the ground that they formed part of the res gestae. The principle has been recognized as sound, although the application is difficult because of the rare circumstances when applicable: National Ulster Co. Bank v. Madden, 114 N. Y. 280, 11 Am. St. Rep. 633, 21 N. E. 408; Place v. Baugher, 159 Ind. 232, 64 N. E. 852. In this connection the court, in Batchelder v. Sanborn, 22 N. H. 325, observed: "If evidence of an act done by a party be admissible, his declarations made at the time, and tending to elucidate or give character to the act itself, and which may derive credit from the act itself, will be admissible as part of the res gestae: Sessions v. Little, 9 N. H. 271. Entries in books are regarded as the statements of the person making them; and if the act done by the party is competent, then entries in his books, made by him at the time of the act, and tending to elucidate and give a character to it, and which may derive credit from the act itself, may be admitted. To come within the principle, as it is ordinarily presented, the act performed and the declaration of entry made should be done by the same person. The declaration should be made by the party performing the act, and so made as to elucidate it. The declaration and the act should not only be concomitant, but should spring from the same source.”
And in the absence of memory, a person who knows that if an act had been done by him it would have been recorded in a certain book, which he identifies, may testify that he knows that the act was not done from the absence of the record to make mention of it, although his memory is not refreshed, and the record is competent evidence of the fact that the act was not performed: Woodward v. Chicago etc. Ry. Co., 145 Fed. 577. And where a witness cannot from recollection testify to a certain fact, but on looking at an original entry made by him knows that he could not have made the entry unless the fact had been true, the entry itself is ad. missible: Costello v. Crowell, 133 Mass. 352.
III. Admissibility of Books and Data of the General Nature of
Books of Account. In General.—The courts are very reluctant to admit books of a party other than books of account in evidence. And in most cases where such books are admitted in evidence, it will be found that the books are in fact books of account, though not generally called so, or that the books are allowed as a memoranda, in connection with other evidence, under the rules of evidence applicable to the introduction of memoranda.
The reluctance of the courts to extend the rule of admissibility beyond books of account is illustrated by the observations of the court in Smith v. Rentz, 131 N. Y. 169, 30 N. E, 54, 15 L. R. A. 138, wherein the court said: “The rule admitting account-books of a party in his own favor, in any case, was a departure from the ordinary rules of evidence. It was founded upon a supposed necessity, and was intended for cases of small traders who kept no clerks, and was confined to transactions in the ordinary course of buying and selling or the rendition of services. In these cases some protection against fraudulent entries is afforded in the publicity which to a greater or less extent attends the manual transfer of tangible articles of property or the rendition of services, and the knowledge which third persons may have of the transactions to which the entries relate. But the same nece
ecessity does not exist in respect to cash transactions. They are usually evidenced by notes or writ. ing or vouchers in the bands of the party paying or advancing the money. Moreover, entries of cash transactions could be fabricated with much greater safety, and with less chance of the fraud being discovered, than entries of goods sold and delivered, or of services rendered. It would be unwise to extend the operation of the rule admitting a party's books in evidence beyond its present limits, as would be the case, we think, if books containing cash dealings were held to be competent.
Parties are now competent witnesses in their own behalf. A resort to books of account is thereby rendered unnecessary in the majority of cases.”
A book containing only private memoranda is not admissible under the rule admitting a tradesman's books or other entries made in the regular course of business: Thompson v. Orena, 134 Cal. 26, 66 Pac. 24. Loose sheets of paper without label, designation or date, con. taining items of articles sold, names of purchases and amount for which they were sold, do not constitute books of account, nor are they admissible under a statute allowing entries in a book or other permanent form made in the usual course of business and contemporaneous with the transactions to which they relate: Kelly v. Crawford, 112 Wis. 368, 88 N. W. 296. But receipts are admissible to show the intention of the parties so far as expressed, or to characterize acts done where they are part of the res gestae: Brooks v. Duggan, 149 Mass. 304, 21 N. E. 381.
b. Time-books and Payrolls.—Time-books containing data showing the time and character of the work of miners made by shift bosses, and from which the payrolls were made up, are admissible to show the accuracy of the recollections and statements of the persons who signed them as to the number of days and months they were at work: Eureka Hill Min. Co. v. Bullion etc. Min. Co., 32 Utah, 236, ante, p. 835, 90 Pac. 157. Where the time of the arrival and de. parture of a certain person was kept on slips and afterward transcribed to a sheet of paper, the slips being then destroyed, the court, in allowing the sheet of paper in evidence, said: “The rule is that a witness may refresh his recollection from a memorandum made by himself or by others, if he saw the memorandum while the facts were still fresh in his memory, and if he then knew it to be correct. In such case if the witness cannot state the facts readily from personal recollection after using the memorandum, but can state that he knows the paper was correct when made, the paper itself may be put in evidence, and the statement of the witness and the contents of the paper together are equivalent to the present positive statement of the witness affirming the truth of the facts stated in the memorandum: Bourda v. Jones, 110 Wis. 52, 85 N. W. 671; 3 Jones on Evidence, sec. 886. It is necessary, in order to justify the reception of the paper itself in evidence, that it appear that the memorandum was one which was seen by the witness while the facts were still fresh in his memory; also that he cannot state the facts from recollection, and that he state positively that he knew that the paper was correct at that time”: Nehrling v. Herold Co., 112 Wis. 558, 88 N. W. 614. The use of one's own book, verified by his oath, is not secondary evidence, nor is it necessary to its admission first to show the loss of other evidence. A time-book of the plaintiff kept in tabular form, in which the days of the month are placed at the head of the column, and the name of the workman at the side, and at the end of each day a figure is placed, indicating that the person has worked the whole or a part of such day, verified by plaintiff's oath, is admissible as an account-book to prove the amount of his own labor, as well as that of his apprentice: Mathes v. Robinson, 8 Met. 269, 41 Am. Dec. 505. Time slips made by workmen and approved by the foreman, showing the amount of labor performed by them upon a certain piece of work, are original memoranda, and are admissible to show the number of hours of work performed on the jub: Jonesboro etc. R. Co. v. United Iron Works Co., 117 Mo. App. 153, 94 S. W. 726. In an action for work and labor, daily tickets made by the foreman of the work stating the time of the men employed are admissible together with his testimony: Jones v. Smith, 37 Ill. App. 169. So, also, where at the end
Am. St. Rep., Vol. 125-54
of each day's work workmen made out a time slip showing the amount of labor performed on a certain job, which slips were approved by the foreman unless anything seemed wrong, in which event he saw the workman about the matter, after which the slips were turned over to the bookkeeper, who transcribed the slips into a time-book within several days after the performance of the work, the time-books were held admissible after the foreman had testified that the slips were correct and the work represented by them was actually performed, and the bookkeepers testified that they had correctly transcribed the slips, of which there were over five thousand. The court required both the slips and time-book to have been made so near the time of the actual performance of the work as to constitute a part of the res gestae: Chishoim v. Beaman Machine Co., 160 Ill. 101, 43 N. E. 796. A time-book kept by the purchaser of a team of horses, showing day by day, with dates and days of the week, the amount of hauling done by him for the seller of the horses, is admissible as a book of original entries in support of evidence that the horses were to be paid for by hauling for the seller, the party making the entries being dead and his handwriting being proved: Dickens v. Winters, 169 Pa. 126, 32 Atl. 289. A time. book kept by a contractor is admissible in a suit for damages caused by delay in performing the contract, to show the date of the final completion of the work to be performed under the contract: Cornell v. Standard Oil Co., 91 App. Div. 345, 86 N. Y. Supp. 633. In a suit for personal injuries, a time-book showing the time worked by the plaintiff after the accident, is admissible to contradict the testimony of the foreman of the gang in which plaintiff worked on the question whether plaintiff was absent for several days after the accident, even though the foreman did not actually make the entries but did turn in the book as the record of the time worked by the members of his gang: Healey v. Wellesley etc. Ry. Co., 176 Mass. 440, 57 N. E. 703. Likewise, where at the end of each week a person in charge of building operations gave to the person who was advancing the money to meet the payrolls slips containing the names, hours of time and amount due each man who had worked on the job, and testified that the slips of paper were correct statements of the facts in each case as far as he could recollect, and that he knew they were correct when made, such slips are admissible to prove the amount of money advanced: Curtis v. Bradley, 65 Conn. 99, 48 Am. St. Rep. 177, 31 Atl. 591, 28 L. R. A. 143. But a memorandum by an agent of a corporation of the time of an employé and his compensation is not admissible without showing that the agent's memory is faulty in respect to the matter, or that he knew that the memorandum was true when made: Susewind v. Lever, 37 Or. 365, 61 Pac. 644. And where a payroll book is not a book of original entries, but consists of copies of entries made in “monthly ledgers" from time-books, it is not admissible as evidence of the facts appearing in it: Price v. Garland, 3 N. M. 285, 6 Pac. 472. A time. book is not admissible to show the number of days' work done by plaintiff's employés without the testimony of the persons who kept
the time or that of the employés who performed the work. When the maker of the entries can only testify that he acted upon in. formation and wrote in accord with it, it must be shown that the information conformed to the facts: Collins v. Carlin, 106 App. Div. 204, 94 N. Y. Supp. 317. It has also been held that if one person claims to have been in the employ of another at a certain time, the time-book of the latter is not admissible in evidence to show such claim to be untrue, since the knowledge of the owner of the time book is the primary and best evidence when he is able to testify to the fact: Conover v. Nehr-Roos Co., 38 Wash. 172, 107 Am. St. Rep. 841, 80 Pac. 281. In Nebraska the court, regarding the purposes of a time-book as being to enable the maker of it to settle with his employés and incidentally keep an account of the cost of each job, refused to allow such a book in evidence under a statute allowing books of account, and observed that there was no authority outside of the statute for its admission: Van Every v. Fitzgerald, 21 Neb. 36, 31 N. W. 264, 59 Am. Rep. 835.
Books and Reports Showing Quantities and Qualities of Mar terial Used, Manufactured or Produced.—A book kept by the owner of an iron foundry which was kept for the purpose of settling with his workmen, and which contained the names of persons to whom iron was delivered, together with the quantity and sometimes tho price, is not admissible as evidence in a suit for the price of the iron: Rogers v. Old, 5 Serg. & R. 404. For the purpose of establishing the quantity of straw destroyed by fire, “stack sheets" made in the regular course of business for the purpose of keeping an inventory of the amount of straw on hand are admissible, even though they were made up from scale tickets and memoranda kept by the person who did the weighing at the scales where the persons making such scale tickets testify that the weights were correctly taken and set down on the scale tickets: Chicago etc. R. Co. v. American Strawboard Co., 190 Ill. 268, 60 N. E. 518. Where, according to the system of conducting a person's business, an employé reports the quantity of materials used in doing a certain piece of work and the cost of doing the same, and later on a bookkeeper enters the items in a day-book, charging the person for whom the work was done with the cost of the materials used and a charge for doing the work, the slips cannot be regarded as a book of original entries, but they are competent evidence of the facts when introduced with the day-book and a ledger which was a condensation of the day-book, since they all formed together a system of carrying on business: Diament v. Colloty, 66 N. J. L. 295, 49 Atl. 445, 808. A scalingbook made by an employé of a lumber company of timber, where the employé did not know where the timber came from that was entered therein except by certain letters placed on said timber by other employés, is not admissible in an action for the conversion of lumber: C. W. Zimmerman Mfg. Co. v. Dunn, 151 Ala. 435, 44 South. 533. So, also, where a scale-book was made up from memoranda made by employés on boards or pieces of paper, the employer cannot refer to the scale-book, and to all intents, put in evidence on the issue of the