no personal knowledge of the truth of the statements contained in the certificate, but obtained their information from freight bills presented by captains of boats carrying the liquor, or from oral statements made by such captains, some of whom, but not all, were produced as witnesses at the trial, the signatures of the other captains who were not produced not being proven nor their deaths shown or absence accounted for. The court took the view that the books in question stood on the same footing as those of a trader or merchant, and that the admissibility of the entries in question must be governed by the rule which governs the admissibilities of entries made by private parties in the ordinary course of their business.

And in an action to recover for labor and material in repairing a yacht, where the bookkeeper made up the various items from memoranda furnished to him by foremen or other employees, and had personal knowledge of the correctness of any of the items, it was held in The Norma (1895) 15 C. C. A. 553, 35 U. S. App. 421, 68 Fed. 509, that the charges might be proved by testimony of the bookkeeper, supplemented by that of persons who made the memoranda (which were largely slate entries and had been destroyed), that such memoranda, to their own knowledge, were correct, but that the charges could not be proved by the testimony of the bookkeeper alone. The court said that, since the originals were destroyed, it would probably not be possible to produce specific evidence to the accuracy of each separate memorandum, but that, at least, the workmen who made the memoranda should have been called to testify that all memoranda made by them and turned in to the bookkeeper during the period in question correctly set forth the hours worked and the materials used; that without such proof the charges in the bill were supported only by hearsay evidence.

See also Rosenthal v. Pine Hill Consol. Min. Co. (1907) 84 C. C. A. 587, 157 Fed. 83, an action by a cor

poration against its agent to recover an alleged unexpended balance of money intrusted to him to be expended for its use and benefit, where judgment had been entered for the plaintiff, based upon its books of account, as to which the secretary of the corporation testified that a substantial amount of the debit items against the defendant was entered by him therein solely upon the unsworn statements of third persons that they had paid to the defendant certain moneys for the company, the court said: "It is true that this hearsay testimony was admitted without objection, and that the plaintiff in error [defendant below] in testifying in his own behalf made no denial of the receipt of the money, and made no reference to that branch of the case, but we are of the opinion that, in the absence of some probative proof against him, he was not called upon to adduce testimony upon the issue so raised."

In an action on account, where the defendant's bookkeeper was not shown to have independent knowledge of the correctness of items entered by him, and there was no evidence that the items were correct except that the bookkeeper thought the books. were correct, it was held in Standard Talking Mach. Co. v. D. O. Matthews Supply Co. (1912) 6 Ala. App. 188, 60 So. 481, that the entries so made were improperly allowed to go the jury as evidence of their correctness. There was also the objection in this instance that the particular entries were not shown to have been made by the witness or to have been original entries.

And an entry of a memorandum of a sale of goods, made in the absence of the purchaser, pursuant to instructions from the seller, by the latter's bookkeeper, who had no knowledge of the contract of sale or of the truthfulness of the memorandum, was held not admissible in J. Snow Hardware Co. v. Loveman (1901) 131 Ala. 221, 31 So. 19, as evidence in favor of the seller, in an action against him by the purchaser for breach of the contract of sale, the court saying that

the memorandum was nothing more or less than hearsay; that it would certainly not have been competent for the bookkeeper to have testified to what the seller told him as to the terms of the contract, and that the memorandum was nothing more than that.

to

See also Butler v. Estrella Raisin Vineyard Co. (1899) 124 Cal. 239, 56 Pac. 1040, in which it was held that entries in trade books of a third party, -a lumber company,—offered show the nature of the transaction by which one of the parties to the suit had purchased lumber, was inadmissible on testimony merely that the party making the entries had done so by direction of the shipping clerk and in accordance with instructions from the manager of the lumber company, the court saying that the witness who made the entries had no knowledge of the facts; that he could not be permitted to testify as to what the manager told him with regard to the sale, as this would be hearsay; that, if so, any inference. which might be drawn from the instruction to keep the account in a particular way would also be inadmissible; and that the manager who made the sale would be competent to testify to the facts of the transaction.

And although the entry in this instance was in the books of a third party, that factor does not apparently affect the decision in Stidger v. McPhee (1900) 15 Colo. App. 252, 62 Pac. 332, where, to prove the date that carpets sold by a mercantile establishment were delivered, the foreman of the carpet department was called, who testified that it was the custom of the company never to make an entry on the books until after or at the time the goods were delivered; that the salesman brought him a slip showing the sale of the carpets, and the time of the delivery, and that therefrom he made an entry on the books; and it was held that, without production of the salesman as a witness, the daybook in which the entry was made from the slip was inadmissible, the foreman not testifying that the goods were

sold or delivered on the date indicated, but only to the effect that he concluded they must have been delivered on or about that date because of the custom of the store.

In Atlanta Journal Co. v. Knowles (1920) 24 Ga. App. 745, 102 S. E. 191, it was held that there was no error in excluding testimony of a witness that the account sued on was just, true, due, and unpaid, to the best of the witness's knowledge, where it appeared from the testimony of the witness that he had no knowledge of the account, other than that obtained from duplicate orders sent to him by another.

It was held in Whitley Grocery Co. v. Roach (1902) 115 Ga. 918, 22 S. E. 282, that where several persons co-operate in making an inventory of a stock of merchandise, such inventory as a whole is not admissible in evidence as a memorandum in connection with the testimony of any one of them, unless he can verify and adopt it in its entirety as representing his knowledge on the subject.

That if the original observer is available as a witness he must be called to prove the transactions, and that if this is not done the books of account are inadmissible in evidence, are supported by Bracken v. Dillon (1879) 64 Ga. 243, 37 Am. Rep. 70, in which, in an action by a merchant on an open account, where it appeared that there were two clerks who were the salesmen of the goods sold and delivered and who were alive and not inaccessible, so far as shown, it was held that the evidence of these salesmen was the best, that the books of account were only secondary evidence and only admissible ex necessitate rei, and under the particular circumstances were inadmissible. There was also the objection in this case to admitting the books in evidence, that the bookkeeper himself was not called nor his absence accounted for.

Under the common-law rule that 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 es

sential that the party furnishing the items should testify as to their correctness, or that satisfactory proof thereof from other sources should be produced, it was held in Stettauer v. White (1881) 98 Ill. 72, that no proper evidence had been produced so as to render admissible the books of the plaintiff purporting to show goods sold to a third party the claim against whom had been purchased by the defendant, where there was evidence merely of the bookkeeper of the plaintiff that the amount as claimed appeared upon the ledger, the entries. being in his handwriting, and testimony of one who made entries in a sales book in the ordinary course of business, purporting to be the entries of the transaction in question, of goods reported as having been sold, this witness making the entries as the goods were called off to him during their assortment in the packing room, but having no personal knowledge of the sale or delivery of the goods, although one of the plaintiffs testified that the original entries of goods sold by them were made in the sales books produced, and that these were fairly and honestly kept in the course of the business of the firm.

A book called a journal is not admissible in evidence in favor of a plumbing company, in an action by it to recover an alleged balance due for plumbing and gas and steam fitting, where the entries in the book were made by a bookkeeper who had no personal knowledge of any of the items, but derived the information from which the entries were made from time books kept by numerous laborers and by an officer and a foreman of the company; from stubs from order books for materials and bills from various firms for goods sold to the company; from directions given to the bookkeeper by an attorney for the company, who himself had no personal knowledge of the items he was causing to be charged against the defendant; and from other sources,-without any attempt to prove the correctness of the items by those having

personal knowledge thereof. Schnellbacher v. Frank McLaughlin Plumb ing Co. (1903) 108 Ill. App. 486.

So, in a foreclosure suit by a loan association against one of its members, entries in the books of the association, made by an employee of the secretary from memoranda given him by the secretary,-such employee himself having no personal knowledge of payments made by the defendant to the association, through the secretary, which were the subject of such memoranda and entries,—are not admissible in evidence without the testimony of the secretary that the memoranda furnished to the bookkeeper were correct, or some other proof of that fact, and proof that the entries in the books were correctly transcribed from the memoranda. Trainor v. German-American Sav. Loan & Bldg. Asso. (1903) 204 Ill. 616, 68 N. E. 650.

In Dodge v. Morrow (1895) 14 Ind. App. 534, 41 N. E. 967, 43 N. E. 153, entries made from information and memoranda furnished to the bookkeeper by those who did the work, and not from his personal knowledge, were held inadmissible, especially as it appeared that other persons were present who knew something about some of the transactions, but who were not called.

The testimony of a bookkeeper of a commission merchant, that the account presented is correct, is insufficient to establish the account, where he never made an original entry in the daybook, cashbook, or invoice book, never saw any of the goods purchased, and knows nothing. about the correctness of the account, except that he kept the ledger correctly from the entries furnished him by the partners and the other clerks. White v. Wilkinson (1857) 12 La. Ann. 359. The court said that the clerks who made the purchases of goods for the defendant should have been examined, and that the drafts which the plaintiff took up, as well as the defendant's receipt for money, ought to have been produced.

In Luce v. Doan (1853) 38 Me. 478, where the question was as to

the competency of a wife who kept her husband's book of accounts, the court said that if the wife were admitted to testify for her husband to entries made by her in his books, unless present when the goods were sold, or the service performed, she could only testify that she made the entries as the husband desired or directed; and that to prove his account, he must also be admitted as a witness.

And entries made in a book by a party as they were read off to him by another from memorandum books kept by the latter, who alone possessed any knowledge of the correctness or incorrectness of the items charged, were held inadmissible in evidence, in Thomas v. Price (1869) 30 Md. 483.

In Atlas Shoe Co. v. Bloom (1911) 209 Mass. 563, 95 N. E. 952, where the plaintiff offered in evidence his books of account, kept in the usual course of business, as proof of the sale and delivery of goods, the entries being transcribed from temporary memoranda made by clerks who had no knowledge of the sale and delivery except upon information received from other clerks whose duties were not shown, the court said that the goods were sold and delivered by the plaintiff's servants, who were not called as witnesses; that, however elaborate or perfect the system may have been, neither the supervisor nor the entry clerk was possessed of such personal knowledge as would. enable them to support the charges and proof of delivery; that, the books of account not being of themselves competent evidence, and the knowledge of the plaintiff's witnesses being derived solely from the entries appearing in them, the ruling that the books were not admissible should be sustained.

And in an action by the proprietor of a hotel on an account for liquors and cigars sold to the defendant, book entries made in the usual course of the plaintiff's business were held inadmissible, in Gould v. Hartley (1905) 187 Mass. 561, 73 N. E. 656, to prove the sale and delivery of the

goods in question, where the books. containing these entries were kept by a clerk in the office of the hotel, who had no personal knowledge of the goods sold by the cigar and bar departments of the hotel except from knowledge derived from slips sent to his office from these departments by a bell boy, the original slips not being produced and the employees who had charge of the bar and the cigar departments not being called upon to testify.

So, in Miller v. Shay (1887) 145 Mass. 162, 1 Am. St. Rep. 449, 13 N. E. 468, where the plaintiff undertook to prove the number of loads of sand which he had delivered to the defendant, by an account book kept by him and by the testimony of the draymen, it was held that the latter were competent and necessary witnesses, the court stating that it has been held in that state that where goods are delivered by a servant, and his entries or marks are transferred to the master's account book, the servant must be a witness to support the charges and to prove the delivery.

The proposition that the person who makes the actual delivery of the goods, as well as the one who enters the transaction on the account book, should be called as a witness, finds support also in Harwood v. Mulry (1857) 8 Gray (Mass.) 250, where the question, however, was as to the admissibility of the evidence of the party making the delivery. The plaintiffs in this instance were partners, one of whom produced the plaintiffs' book of accounts and testified that the goods sued for were charged therein by himself to the defendant, and that they were taken from their shop by his partner to be delivered to the defendant; and it was held erroneous to exclude evidence by the other partner as to the delivery of the goods, on the ground that he had made no memorandum or charge thereof.

Without discussing the present question, although referring to authorities in point thereon, the court in Kaplan v. Gross (1916) 223 Mass.

152, 111 N. E. 853, held that proof of a stock inventory could not be made merely by evidence of a clerk that he counted the stock personally, with the exception of some jars which were packed in bins, and that as to them he took the record from a stock book kept by him from slips turned in by workers who made the jars.

Where entries in a book of account charging articles sold have opposite each charge an entry of the name of the teamster who delivered the article, the teamsters should all be called to verify the charges, or their absence should be accounted for, before the books are received in evidence; and the fact that it may be highly improbable that the teamster would remember the quantity delivered would furnish no sufficient reason why he should not be called. The main fact to be ascertained or proved is that the articles have been delivered; and it is only upon a failure to prove a delivery of the articles by the agent when called, that the books are received as the next best evidence. Jackson v. Evans (1860) 8 Mich. 476.

And in Swan v. Thurman (1897) 112 Mich. 416, 70 N. W. 1023, where the only testimony to support the books was that of the bookkeeper, who merely transcribed the entries from slips handed to him by salesmen, and who had no personal knowledge of the sale and delivery of the articles charged, the court said: "It is sometimes proper to admit books of account as evidence of the acts of those who keep them, where the entries are contemporaneous with the acts recorded; but where the book is, as in this case, the record of the acts of others, not within the personal knowledge of the bookkeeper, but made up from the statements of others, such book is hearsay. From the earliest cases, the admission of entries by third persons has proceeded upon the theory that such persons had personal knowledge of the fact stated in the entry."

Attention is called also to Countryman v. Bunker (1894) 101 Mich. 218,

59 N. W. 422, to the effect that a book of a party suing for services rendered is properly excluded where it is a memorandum book in which certain entries were made by his wife, who knew nothing about the details of the transactions, and only made such memoranda as he requested her to make, and it does not contain an accurate statement of all the items of account between the parties, but contains simply memoranda of when the plaintiff commenced work, the rate of wages, and amount of money paid, and contains no account of lost time; and it appears that there has been one payment made of the receipt of which no memorandum was made in the book. It will be observed that there were other reasons in this case for excluding the evidence besides the lack of the entrant's personal knowledge, and the decision does not appear to rest especially upon the latter ground.

And in an action for goods sold and delivered, it has been held that entries in plaintiff's ledger, made up from slips made out in duplicate by the clerks who made the sales, one of which was sent to the bundle counter and the other to the bookkeeper, and which slips have been destroyed, are not admissible in evidence, without proof that no entries were made except from slips, that no slips were sent to the bookkeeper except when goods, with a duplicate slip, were sent to the bundle counter, and that all goods sent to the bundle counter were delivered. Taylor-Woolfenden Co. v. Atkinson (1901) 127 Mich. 633, 87 N. W. 89.

It was held in Union Cent. L. Ins. Co. v. Prigge (1903) 90 Minn. 370, 96 N. W. 917, that entries in the account books of an insurance company, based solely upon memoranda furnished by an agent when sending in applications for insurance, and as to the correctness of which the bookkeeper had no personal knowledge, were not admissible in evidence in an action against the agent and his surety, to recover moneys received by the agent for the company, and not paid over to it.