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(105 Or. 559, 210 Pac. 863.) his handwriting. 4 Chamberlayne,

4 Chamberlayne, livery of the goods sued for. In Ev. SS 3069, 3070; note in 15 Am. this connection it may be of interest Dec. 193.

to observe that one writer intimatePersonal knowledge on the part ly acquainted with the New York of the one who made the entry is, rule has declared that the New

broadly speaking, York requirement of proof of de-knowledge of

essential. Note in livery, independent of the books, reports.

15 Am. Dec. 197; 2 of part of the goods sued for, was Wigmore, Ev. $ 1555. The entrant devised in order to have commonmust generally know, of his own law proof of at least some part of knowledge, the truth of the transac- the account before the books are adtion which he enters. 4 Chamber- mitted as proof of the balance. 12 layne, Ev. $$ 3071, 3072; 1 Elliott, Bench & Bar, 14, 22. Ev. SS 455, 458, 462. If the entrant It is not necessary, in order to made the entries upon reports of make the books admissible, that another who had personal knowl- some witness shall testify that he edge of the transactions reported by then recollects, independently of him, then the entrant ought to be the books, that some of the articles produced and required to testify were delivered.

The admissibility that he made the entries correctly of the books does

-necessity of in conformity with the reports; and not depend upon in- proof of de

livery. his testimony should be supplement- dependent evidence ed by the testimony of the one who of delivery, although the lack of made the reports, so that their com- such independent evidence may afbined testimony would be equivalent fect the weight of the books. to the testimony of an entrant hav- There are, of course, holdings to ing personal knowledge. 2 Wig- the contrary. If the entrant, the more, Ev. $$ 1530 and 1555; note in bookkeeper, or the transactor, the 36 L.R.A.(N.S.) 900, 902; 4 Cham- person who makes the reports to berlayne, Ev. § 3074; 2 Enc. Ev. the bookkeeper, is unavailable be627; House v. Beak, 141 Ill. 290, 33 cause of death, insanity, physical Am. St. Rep. 307, 30 N. E. 1065; disability, or permanent absence Gould v. Hartley, 187 Mass. 561, 73 from the jurisdicN. E. 656.

tion of the court, inability of It is not necessary that the en

the offerer may be trant, when testifying, shall at that excused from producing suc

time have an inde- trant or transactor. The excuse is -personal recollection of pendent recollection based upon the idea of unavailabilentrant.

of the transactions ity. It may be that entries are entered, but he must be able to say made on the faith of reports involvthat at the time when he made the ing many items handled by many entries he had personal knowledge clerks, salesmen, teamsters, and the of the transactions, and that the like; and such a situation may likeentries were made correctly and in

wise present a case of unavailabilconformity with such knowledge. 2

ity, and thus excuse the production Enc. Ev. 634; Merrill v. Ithaca & 0.

of all the persons who have contrib

uted their knowledge in making up R. Co. 16 Wend. 586, 30 Am. Dec.

the items of voluminous accounts. 130.

In the language of Professor WigWhen the entrant appears as a more, the excuse in such a case is witness, and testifies that at the

based upon the ground of “mercantime of making the entries he had tile inconvenience." 2 Wigmore, knowledge of the transactions en

Ev. $$ 1521, 1530, 1555; 4 Chambertered, and that he made the entries layne, Ev. $ 3074. in accordance with the truth, there If the practical inconvenience reis not, in the final analysis, a total sulting from the production of nulack of evidence concerning the de- merous persons outweighs the prob

-absence or

entrant.

of witnesses

able utility of doing so, the offerer The books, when received, are -nonproduction

of the books may be prima facie evidence of the perti

excused from pro- nent entries therein contained, inexcused.

ducing such numer- cluding the delivery of the articles ous persons. Missouri, K. & T. R. specified and the Co. v. Davis, 24 Okla. 677, 24 L.R.A. values thereof. 3

Evidence-effeet

of shopbooks. (N.S.) 866, 104 Pac. 34; West Vir- Horwitz's Jones, ginia Architects & Builders v. Stew. Ev. § 567 (582); Friendly v. Lee, art, 68 W. Va. 506, 36 L.R.A.(N.S.) 20 Or. 202, 204, 25 Pac. 396; 2 Enc. 899, 70 S. E. 113. See also Sea- Ev. 642, 138 Am. St. Rep. 465 and board Air Line R. Co. v. Railroad 467; 10 R. C. L. 1186; Harmon v. Comrs. 86 S. C. 91, 138 Am. St. Rep. Decker, 41 Or. 587, 594, 93 Am. St. 1028, 67 S. E. 1069.

Rep. 748, 68 Pac. 11, 1111. There is a contrariety of judicial In the instant case the sheets opinion as to whether books of ac- from the daybook, although made counts are original or secondary up from the sales evidence, but it seems to us that slips,

constituted -original

entries. under the New England doctrine the first permanent

books admitted un- record of the alleged transactions, -quality of evidence.

der the shopbook and compose a book of original enrule ought logically tries.

tries. Ladd v. Sears, 9 Or. 244; to be received as original evidence, State v. Stephenson, 69 Kan. 405, and this seems to be the majority 105 Am. St. Rep. 171, 76 Pac. 905, 2 view. Friendly v. Lee, 20 Or. 202, Ann. Cas. 841; 10 R. C. L. 1182. 204, 25 Pac. 396; Mathes v. Robin- Loose-leaf books are competent. 22 son, 8 Met. 369, 41 Am. Dec. 505; C. J. 870. 22 C. J. 864; 4 Chamberlayne, Ev. If a sufficient foundation had 88 3056, 3076, 3081; 10 Ř. C. L. been laid, the sheets from the day. 1174.

book would have furnished enough The existence of other testimony evidence to take the case to the does not prevent the admission of jury; but a sufficient foundation

books under the was not laid. For aught that we shopbook rule. 2

can know from the other evidence.

-necessity of Wigmore, Ev. § record, Radtke may verification 1544; note in 138 Am. St. Rep. 445; have had no knowl

by clerks. Doty v. Crawford, 39 S. C. 1, 17 S. edge whatever of the transactions E. 377. Upon this question the entered, except as he was informed courts are at variance just as they by the slips. The sales, if made, disagree as to whether the books are may have been made by one or more original or secondary evidence. clerks. The clerks, if any there Bracken v. Dillon, 64 Ga. 243, 37 were, must, if available within the Am. Rep. 70.

meaning of the rule governing The court passes upon the admis- availability, be produced and fursibility of the books, and the jury nish testimony in verification of the pass upon their weight. Mason v. sales slips. Moreover, it is only by

Melhase,

64 Or. doubtful inference that we could Trial-question

522, 529, 130 Pac. say that there was any evidence jury-shopbooks.

1134; Henshaw v. tending to show that the entries Davis, 5 Cush. 145; Seaboard Air were made in conformity with the Line R. Co. v. Railroad Comrs. 86 slips. S. C. 91, 138 Am. St. Rep. 1028, 67 The judgment is reversed, and S. E. 1069.

the cause is remanded.

-effect of existence of

for court and

ANNOTATION.

Necessity of verification by one who furnishes data for book entries made by

another having no personal knowledge of the transactions.

I. Introduction, 1439.
II. Rule excluding entries without veri-

fication:
a. Statements of rule, 1439.
b. Applications:

1. Generally, 1441.
2. Unavailability of original

observer, 1451.
3. Cases holding that rule was

not violated under the particular circumstances, 1453.

III. Minority or modified view that en

tries may be admitted without

verification: a. In general, 1453. b. Unavailability of original ob

server, 1456. c. Inconvenience or probable futil

ity of calling large number of

original observers, 1458. IV. Statutes, 1462. V. Miscellaneous, 1464.

I. Introduction. 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

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. 11. Rule excluding entries without veri.

fication. 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.

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646, 64 Fed. 314; The Norma (1895) Atlas Shoe Co. v. Bloom (1911) 209 15 C. C. A. 553, 35 U. S. App. 421, Mass. 563, 95 N. E. 952. See also 68 Fed. 509. See also Feuchtwanger Kaplan v. Gross (1916) 223 Mass. v. Manitowoc Malting Co. (1911) 109 152, 111 N. E. 853. C. C. A. 461, 187 Fed. 713, and Michigan. Jackson

Evans American Surety Co. v. Pauly (1896) (1860) 8 Mich. 476; Swan v. Thurmar 18 C. C. A. 644, 38 U. S. App. 254, (1897) 112 Mich. 416, 70 N. W. 1023; 72 Fed. 470, affirmed in (1898) 170 Kuennan v. United States Fidelity & U. S. 134, 42 L. ed. 977, 18 Sup. Ct. G. Co. (1909) 159 Mich. 122, 123 Rep. 552, under III. b, infra; The Spica N. W. 799 (recognizing rule). (1923) 289 Fed. 436.

Minnesota. Paine .v. Sherwood Alabama. Loveman, Joseph & (1875) 21 Minn. 225. Loeb v. McQueen (1919) 203 Ala. Missouri. Ridenour v. Wilcox 280, 82 So. 530; Standard Talking Mines Co. (1912) 164 Mo. App. 576, Mach. Co. v. D. 0. Matthews Supply 147 S. W. 852. See also Hill v. Co. (1912) 6 Ala. App. 188, 60 So. Johnson (1889) 38 Mo. App. 383. 481. See

also

Hart V. Kendall New York. New York v. Second (1886) 82 Ala. 144, 3 So. 41.

Ave. R. Co. (1886) 102 N. Y. 572, 55 Arkansas. See Stanley v. Wil- Am. Rep. 839, 7 N. E. 905; Peck v. kerson (1897) 63 Ark. 556, 39 S. W. Von Keller (1878) 15 Hun, 470, af1043, under III. b, infra.

firmed in (1879) 76 N. Y. 604; California. Butler v. Estrella Irving v. Claggett (1890) 56 Hun, Raisin Vineyard Co. (1899) 124 Cal. 642, 3 Silv. Sup. Ct. 514, 9 N. Y. Supp. 239, 56 Pac. 1040.

136; Abele v. Falk (1898) 28 App. Colorado. Stidger v. McPhee Div. 191, 50 N. Y. Supp. 876; Power (1900) 15 Colo. App. 252, 62 Pac. 332 v. Murphy (1897) 18 App. Div. 25, (entry in books of third party). 45 N. Y. Supp. 374; Shipman v. See also Charles V. Ballin (1894) 4 Glynn (1898) 31 App. Div. 425, 52 Colo. App. 186, 35 Pac. 279.

N. Y. Supp. 691; Rothenberg v. HerGeorgia. Bracken v. Dillon (1879)

(1904) 90 N. Y. Supp. 431; 64 Ga. 243, 37 Am. Rep. 70; Whitley Collins v. Carlin (1905) 106 App. Div. Grocery Co. v. Roach (1902) 115 Ga. 204, 94 N. Y. Supp. 317; Galway 918, 42 S. E. 282; Dougan v. Dunham & Co. v. Prignano (1912) 134 N. Y. (1902) 115 Ga. 1012, 42 S. E. 390; Supp. 571. See also Ives v. Waters Atlanta Journal Co. Knowles (1883) 30 Hun, 297; Powers v. Savin (1920) 24 Ga. App. 745, 102 S. E. 191. (1892) 64 Hun, 560, 22 N. Y. Civ.

Illinois.-Stettauer v. White (1881) Proc. Rep. 253, 28 Abb. N. C. 463, 19 98 Ill. 72; House V. Beak (1892) N. Y. Supp. 340, affirmed in (1893) 141 Ill. 290, 33 Am. St. Rep. 307, 30 139 N. Y. 652, 35 N. E. 207, and N. E. 1065; Chisholm

Beaman

Rathborne v. Hatch (1903) 80 App. Mach, Co. (1896) 160 Ill. 101, 43 N. E. Div. 115, 80 N. Y. Supp. 347. 796; Trainor v. German-American Sav. Ohio. Falardeau v. W. H. H. Loan & Bldg. Asso. (1903) 204 Ill. Smith Co. (1909) 31 Ohio C. C. 649. 616, 68 N. E. 650; Schnellbacher v. Oklahoma. Navarre v. Honea Frank McLaughlin Plumbing Co. (1914) 41 Okla. 480, 139 Pac. 310 (1903) 108 Ill. App. 486.

(recognizing rule, which had been Louisiana. White v. Wilkinson changed in that state by statute). (1857) 12 La. Ann. 359.

Oregon. RADTKE v. TAYLOR (reMaine. See Luce v. Doane (1853) ported herewith) ante, 1423. 38 Me. 478, and Mansfield v. Gushee Pennsylvania. — Kessler v. M'Cona(1921) 120 Me. 333, 114 Atl. 296. chy (1829) 1 Rawle, 435.

Massachusetts. Kent v. Garvin South Carolina. Venning v. (1854) 1 Gray, 148; Harwood v. Mulry Hacker (1834) 20 S. C. L. (2 Hill) (1857) 8 Gray, 250; Miller v. Shay 584; Thomson v. Porter (1850) 23 (1887) 145 Mass. 162, 1 Am. St. Rep. S. C. Eq. (4 Strobh.) 58, 53 Am. Dec. 449, 13 N. E. 468; Gould v. Hartley 653. (1905) 187 Mass. 561, 73 N. E. 656; Texas. Randle v. Barden (1914)

man

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Tex. Civ. App.

- 164 S. W. oath of the party making the entry, 1063; Thrift v. Holland (1916) the party furnishing the items should Tex. Civ. App. 183 S. W. 1189. testify to their correctness.”

Washington. Tingley v. Fair- It is said in Thomson v. Porter haven Land Co. (1894) 9 Wash. 34, (S. C.) supra, that in the case of a 36 Pac. 1098.

merchant or a shopkeeper who makes England. Brain v. Preece (1843) entries himself from the statement 11 Mees. & W. 773, 152 Eng. Re- of his clerks, the latter must prove print, 1016.

the delivery of the goods, and the Canada. Leslie v. Hanson (1868) former is incompetent to establish 12 N. B. 263.

it. It was said in Chisholm v. Beaman And it is said in Dougan v. Dunham Mach. Co. (1896) 160 Ill. 101, 43 (1902) 115 Ga. 1012, 42 S. E. 390, N. E. 796: “Where the clerk who that the correctness of an account makes the entries has no knowledge cannot be lawfully proved by the of their correctness, but makes them testimony of a witness that the same as the items are furnished by an

correct copy of the charges other, it is essential that the party made on the books kept by her, when furnishing the items should testify to the witness further testifies that she their correctness, or that satisfactory knew nothing of her own knowledge proof thereof-such as the tranac- with respect to the account, and tions are reasonably susceptible of only copied in the book entries given —from other sources should be pro- to her by another on slips. This duced.”

statement is approved also in Atlanta To warrant the admission in evi- Journal Co. v. Knowles (1920) 24 Ga. dence of entries transcribed from App. 745, 102 S. E. 191. temporary memoranda, the person

b. Applications. who made the provisional entries should be called to prove that at, or

1. Generally. about the time the entries were

In the majority of the cases in made, articles like those charged were which book entries based on data delivered, or work of a character

furnished by others to the entrant similar to that charged was per- who had no personal knowledge of the formed. Paine v. Sherwood (1875) transaction have been held inadmis21 Minn. 225.

sible without verification by the So, it was said in Stettauer v. White original observers or informers, the (1881) 98 Il. 72, that at common court has made no reference to the law, where the clerk who made the effect of unavailability of the latter entries had no knowledge of their witnesses, as in case they were dead, correctness, but made them as the insane, absent from the jurisdiction items were furnished by another, it of the court, or their whereabouts was essential that the party furnish- unknown. The courts have merely ing the items should testify as to their held that the person or persons having correctness, or that satisfactory proof personal information and furnishing thereof, such the transactions such data should have been called as were reasonably susceptible of, from witnesses. Because the cases of this other sources, should be produced. kind are somewhat numerous, and The rule was stated in Ridenour

special features calling for classificaV. Wilcox Mines Co. (1912) 164 Mo.

tion by groups do not readily appear, App. 576, 147 S. W..852, as follows: they have been arranged below ac“Where a clerk makes entries, who cording to jurisdictions. has no knowledge of their correctness, In Chaffee v. United States (1874) but makes them from items fur- 18 Wall. (U. S.) 516, 21 L. ed. 908, nished by another, as where entries the court held inadmissible certificate are made by a bookkeeper from re- books of canal toll collectors ofports made by a foreman, it is held fered to prove amounts of liquor essential that, in addition to the transported, where the collectors had

27 A.L.R.-91.

as

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