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(105 Or. 559, 210 Pac. 863.)

his handwriting. 4 Chamberlayne, livery of the goods sued for. Ev. $$ 3069, 3070; note in 15 Am. Dec. 193.

-knowledge of correctness of reports.

Personal knowledge on the part of the one who made the entry is, broadly speaking, essential. Note in 15 Am. Dec. 197; 2 Wigmore, Ev. § 1555. The entrant must generally know, of his own knowledge, the truth of the transaction which he enters. 4 Chamberlayne, Ev. §§ 3071, 3072; 1 Elliott, Ev. $$ 455, 458, 462. If the entrant made the entries upon reports of another who had personal knowledge of the transactions reported by him, then the entrant ought to be produced and required to testify that he made the entries correctly in conformity with the reports; and his testimony should be supplemented by the testimony of the one who made the reports, so that their combined testimony would be equivalent to the testimony of an entrant having personal knowledge. 2 Wig2 Wigmore, Ev. §§ 1530 and 1555; note in 36 L.R.A. (N.S.) 900, 902; 4 Chamberlayne, Ev. § 3074; 2 Enc. Ev. 627; House v. Beak, 141 Ill. 290, 33 Am. St. Rep. 307, 30 N. E. 1065; Gould v. Hartley, 187 Mass. 561, 73 N. E. 656.

-personal recollection of entrant.

It is not necessary that the entrant, when testifying, shall at that time have an independent recollection of the transactions entered, but he must be able to say that at the time when he made the entries he had personal knowledge of the transactions, and that the entries were made correctly and in conformity with such knowledge. 2 Enc. Ev. 634; Merrill v. Ithaca & O. R. Co. 16 Wend. 586, 30 Am. Dec. 130.

When the entrant appears as a witness, and testifies that at the time of making the entries he had knowledge of the transactions entered, and that he made the entries in accordance with the truth, there is not, in the final analysis, a total lack of evidence concerning the de

In

this connection it may be of interest to observe that one writer intimately acquainted with the New York rule has declared that the New York requirement of proof of delivery, independent of the books, of part of the goods sued for, was devised in order to have commonlaw proof of at least some part of the account before the books are admitted as proof of the balance. 12 Bench & Bar, 14, 22.

It is not necessary, in order to make the books admissible, that some witness shall testify that he then recollects, independently of the books, that some of the articles were delivered. The admissibility of the books does -necessity of not depend upon in- proof of dedependent evidence of delivery, although the lack of such independent evidence may affect the weight of the books.

livery.

There are, of course, holdings to the contrary. If the entrant, the bookkeeper, or the transactor, the person who makes the reports to the bookkeeper, is unavailable because of death, insanity, physical disability, or permanent absence from the jurisdic- -absence or

entrant.

tion of the court, inability of the offerer may be excused from producing such entrant or transactor. The excuse is based upon the idea of unavailability. It may be that entries are made on the faith of reports involving many items handled by many clerks, salesmen, teamsters, and the like; and such a situation may likewise present a case of unavailability, and thus excuse the production of all the persons who have contributed their knowledge in making up the items of voluminous accounts. In the language of Professor Wigmore, the excuse in such a case is based upon the ground of "mercantile inconvenience." 2 Wigmore, Ev. §§ 1521, 1530, 1555; 4 Chamberlayne, Ev. § 3074.

If the practical inconvenience resulting from the production of numerous persons outweighs the prob

able utility of doing so, the offerer

-nonproduction

of witnesses

excused.

of the books may be excused from producing such numerous persons. Missouri, K. & T. R. Co. v. Davis, 24 Okla. 677, 24 L.R.A. (N.S.) 866, 104 Pac. 34; West Virginia Architects & Builders v. Stewart, 68 W. Va. 506, 36 L.R.A. (N.S.) 899, 70 S. E. 113. See also Seaboard Air Line R. Co. v. Railroad Comrs. 86 S. C. 91, 138 Am. St. Rep. 1028, 67 S. E. 1069.

evidence.

There is a contrariety of judicial opinion as to whether books of accounts are original or secondary evidence, but it seems to us that under the New England doctrine books admitted un-quality of der the shopbook rule ought logically to be received as original evidence, and this seems to be the majority view. Friendly v. Lee, 20 Or. 202, 204, 25 Pac. 396; Mathes v. Robinson, 8 Met. 369, 41 Am. Dec. 505; 22 C. J. 864; 4 Chamberlayne, Ev. S$ 3056, 3076, 3081; 10 R. C. L. 1174.

The existence of other testimony does not prevent the admission of

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Evidence-effect

3 of shopbooks.

The books, when received, are prima facie evidence of the pertinent entries therein contained, including the delivery of the articles specified and the values thereof. Horwitz's Jones, Ev. 567 (582); Friendly v. Lee, 20 Or. 202, 204, 25 Pac. 396; 2 Enc. Ev. 642, 138 Am. St. Rep. 465 and 467; 10 R. C. L. 1186; Harmon v. Decker, 41 Or. 587, 594, 93 Am. St. Rep. 748, 68 Pac. 11, 1111.

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-necessity of

If a sufficient foundation had been laid, the sheets from the daybook would have furnished enough evidence to take the case to the jury; but a sufficient foundation was not laid. For aught that we can know from the record, Radtke may verification have had no knowl- by clerks. edge whatever of the transactions entered, except as he was informed by the slips. The sales, if made, may have been made by one or more clerks. The clerks, if any there were, must, if available within the meaning of the rule governing availability, be produced and furnish testimony in verification of the sales slips. Moreover, it is only by doubtful inference that we could say that there was any evidence tending to show that the entries were made in conformity with the slips.

The judgment is reversed, and the cause is remanded.

ANNOTATION.

Necessity of verification by one who furnishes data for book entries made by another having no personal knowledge of the transactions.

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The annotation does not include, in general, cases in which the entry was in the books of third persons not parties to the suit, although a few cases of this class are included where this factor did not apparently affect the question, and the same rule would have been applied had the entries been in books of parties to the litigation. The question of the admissibility of books of accounts as books of original entry is not within the scope of the annotation. It should be observed, also, that such questions as the necessity of calling as a witness the party making the entry, or the manner of proving that it is correctly made, are not within the present subject. Cases which involve only the question of the admissibility of entries, or testimony of the entrant where no personal knowledge is shown on the part of the latter as to the correctness of the same, are not generally included, unless it appears, or may clearly be inferred, that the persons furnishing the data on which the entries were based were not produced as witnesses. The annotation is, in fact, from the necessities of the case, confined for the most part to those cases in which apparently the court has had consciously in mind, and has discussed, the question indicated in the above title.

It may be noted, also, that the annotation purports to deal with entries in books of accounts, or entries which are treated as standing upon

III. Minority or modified view that en

tries may be admitted without verification:

a. In general, 1453.

b. Unavailability of original observer, 1456.

c. Inconvenience or probable futility of calling large number of original observers, 1458.

IV. Statutes, 1462.

V. Miscellaneous, 1464.

the same basis as those in books of accounts; and even though a few cases may be referred to by way of illustration or analogy which are not strictly of this character, the annotation should not be regarded as intended to cover any other class of cases. II. Rule excluding entries without verification.

a. Statements of rule.

The doctrine is supported by many cases, that book entries not made by one who has personal knowledge of the transactions, but based upon memoranda or data furnished by others, are not admissible in evidence, without verification by the one furnishing the data and having personal knowledge of the transactions on which it is based, since otherwise the entries, even though made in the regular course of business and as a part of the duties of the entrant, are not the best evidence, but are in the nature of hearsay. This general rule, which is sound in theory, has been found not to be justified often under modern business conditions, and has undergone, and is still in process of undergoing, substantial modification (see III., infra; especially, III. c, infra), although in particular instances there may be no sufficient reason to question its application. The doctrine finds support in the following cases:

United States. Chaffee v. United States (1874) 18 Wall. 516, 21 L. ed. 908; Chicago Lumbering Co. v. Hewitt (1894) 12 C. C. A. 129, 22 U. S. App.

646, 64 Fed. 314; The Norma (1895) 15 C. C. A. 553, 35 U. S. App. 421, 68 Fed. 509. See also Feuchtwanger v. Manitowoc Malting Co. (1911) 109 C. C. A. 461, 187 Fed. 713, and American Surety Co. v. Pauly (1896) 18 C. C. A. 644, 38 U. S. App. 254, 72 Fed. 470, affirmed in (1898) 170 U. S. 134, 42 L. ed. 977, 18 Sup. Ct. Rep. 552, under III. b, infra; The Spica (1923) 289 Fed. 436.

Alabama. Loveman, Joseph & Loeb v. McQueen (1919) 203 Ala. 280, 82 So. 530; Standard Talking Mach. Co. v. D. O. Matthews Supply Co. (1912) 6 Ala. App. 188, 60 So. 481. See also Hart V. Kendall (1886) 82 Ala. 144, 3 So. 41.

Arkansas. See Stanley v. Wilkerson (1897) 63 Ark. 556, 39 S. W. 1043, under III. b, infra.

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Georgia. Bracken v. Dillon (1879) 64 Ga. 243, 37 Am. Rep. 70; Whitley Grocery Co. v. Roach (1902) 115 Ga. 918, 42 S. E. 282; Dougan v. Dunham (1902) 115 Ga. 1012, 42 S. E. 390; Atlanta Journal Co. V. Knowles (1920) 24 Ga. App. 745, 102 S. E. 191. Illinois.-Stettauer v. White (1881) 98 Ill. 72; House v. Beak (1892) 141 Ill. 290, 33 Am. St. Rep. 307, 30 N. E. 1065; Chisholm V. Beaman Mach. Co. (1896) 160 Ill. 101, 43 N. E. 796; Trainor v. German-American Sav. Loan & Bldg. Asso. (1903) 204 Ill. 616, 68 N. E. 650; Schnellbacher v. Frank McLaughlin Plumbing Co. (1903) 108 Ill. App. 486.

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Maine. See Luce v. Doane (1853) 38 Me. 478, and Mansfield v. Gushee (1921) 120 Me. 333, 114 Atl. 296. Massachusetts. Kent v. Garvin (1854) 1 Gray, 148; Harwood v. Mulry (1857) 8 Gray, 250; Miller v. Shay (1887) 145 Mass. 162, 1 Am. St. Rep. 449, 13 N. E. 468; Gould v. Hartley (1905) 187 Mass. 561, 73 N. E. 656;

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(1875) 21 Minn. 225. Missouri.

Ridenour v. Wilcox Mines Co. (1912) 164 Mo. App. 576, 147 S. W. 852. See also Hill V. Johnson (1889) 38 Mo. App. 383.

New York. New York v. Second Ave. R. Co. (1886) 102 N. Y. 572, 55 Am. Rep. 839, 7 N. E. 905; Peck v. Von Keller (1878) 15 Hun, 470, affirmed in (1879) 76 N. Y. 604; Irving v. Claggett (1890) 56 Hun, 642, 3 Silv. Sup. Ct. 514, 9 N. Y. Supp. 136; Abele v. Falk (1898) 28 App. Div. 191, 50 N. Y. Supp. 876; Power v. Murphy (1897) 18 App. Div. 25, 45 N. Y. Supp. 374; Shipman v. Glynn (1898) 31 App. Div. 425, 52 N. Y. Supp. 691; Rothenberg v. Her431; (1904) 90 N. Y. Supp. Collins v. Carlin (1905) 106 App. Div. 204, 94 N. Y. Supp. 317; Galway & Co. v. Prignano (1912) 134 N. Y. Supp. 571. See also Ives v. Waters (1883) 30 Hun, 297; Powers v. Savin (1892) 64 Hun, 560, 22 N. Y. Civ. Proc. Rep. 253, 28 Abb. N. C. 463, 19 N. Y. Supp. 340, affirmed in (1893) 139 N. Y. 652, 35 N. E. 207, and Rathborne v. Hatch (1903) 80 App. Div. 115, 80 N. Y. Supp. 347.

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England.

Brain v. Preece (1843) 11 Mees. & W. 773, 152 Eng. Reprint, 1016.

Canada. Leslie v. Hanson (1868) 12 N. B. 263.

It was said in Chisholm v. Beaman Mach. Co. (1896) 160 Ill. 101, 43 N. E. 796: "Where the clerk who makes the entries has no knowledge of their correctness, but makes them as the items are furnished by another, it is essential that the party furnishing the items should testify to their correctness, or that satisfactory proof thereof-such as the tranactions are reasonably susceptible of -from other sources should be produced."

To warrant the admission in evidence of entries transcribed from temporary memoranda, the person who made the provisional entries should be called to prove that at, or about, the time the entries were made, articles like those charged were delivered, or work of a character similar to that charged was performed. Paine v. Sherwood (1875) 21 Minn. 225.

So, it was said in Stettauer v. White (1881) 98 Ill. 72, that at common law, where the clerk who made the entries had no knowledge of their correctness, but made them as the items were furnished by another, it was essential that the party furnishing the items should testify as to their correctness, or that satisfactory proof thereof, such as the transactions were reasonably susceptible of, from other sources, should be produced.

The rule was stated in Ridenour v. Wilcox Mines Co. (1912) 164 Mo. App. 576, 147 S. W..852, as follows: "Where a clerk makes entries, who has no knowledge of their correctness, but makes them from items furnished by another, as where entries are made by a bookkeeper from reports made by a foreman, it is held essential that, in addition to the 27 A.L.R.-91.

oath of the party making the entry, the party furnishing the items should testify to their correctness."

It is said in Thomson v. Porter (S. C.) supra, that in the case of a merchant or a shopkeeper who makes entries himself from the statement of his clerks, the latter must prove the delivery of the goods, and the former is incompetent to establish it.

And it is said in Dougan v. Dunham (1902) 115 Ga. 1012, 42 S. E. 390, that the correctness of an account cannot be lawfully proved by the testimony of a witness that the same is a correct copy of the charges made on the books kept by her, when the witness further testifies that she knew nothing of her own knowledge with respect to the account, and only copied in the book entries given to her by another on slips. This statement is approved also in Atlanta Journal Co. v. Knowles (1920) 24 Ga. App. 745, 102 S. E. 191.

b. Applications.

1. Generally.

In the majority of the cases in which book entries based on data furnished by others to the entrant who had no personal knowledge of the transaction have been held inadmissible without verification by the original observers or informers, the court has made no reference to the effect of unavailability of the latter witnesses, as in case they were dead, insane, absent from the jurisdiction of the court, or their whereabouts unknown. The courts have merely held that the person or persons having personal information and furnishing such data should have been called as witnesses. Because the cases of this kind are somewhat numerous, and special features calling for classification by groups do not readily appear, they have been arranged below according to jurisdictions.

In Chaffee v. United States (1874) 18 Wall. (U. S.) 516, 21 L. ed. 908, the court held inadmissible certificate books of canal toll collectors offered to prove amounts of liquor transported, where the collectors had

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