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to know the quantity delivered or the controlling principle being that of times of delivery; nor could their practical necessity, and that the testimony always be had. The book, party's unavailability as a witness then, kept in the usual order of was a sufficient ground for dispensing such transactions, was properly re- with his testimony in corroboration of ceived."

the entries made on his reports. In Squires v. O'Connell (1916) 91 On the question of what cars were Vt. 35, 99 Atl. 268, the court said destroyed in a certain yard by a mob, that it seemed to be well settled that record books of the railway company the various inferior employees of a were held admissible, in Pittsburgh, large business, whose memoranda C. C. & St. L. R. Co. v. Chicago of time, materials, receipts, deliveries, (1909) 242 Ill. 178, 44 L.R.A.(N.S.) and the like, are the basis of the ac- 358, 134 Am. St. Rep. 316, 89 N. E. count, need not be called as wit- 1022, the entries being shown to be nesses; but that the ordinary protec- correctly copied in the regular course tion of others requires that the super- of business from reports by convising employees, under whose man- ductors and other employees as to the agement and observation this work is construction and classification of carried on, and who receive, consoli- cars, and their arrival and departure date, and transmit this data to those from yards. But the court does not who make up the permanent account, discuss the question of the necessity should be called if reasonably ac- of calling the original observers or cessible.

informers, and it appears in this inSquires v. O'Connell (Vt.) supra, stance that the testimony of a number

an action to recover for the of the conductors, as well as the cutting and storing of lumber, in reports made by them, was admitted which the only question was as to the in evidence. amount of the lumber; and it was Of possible interest in this conheld that a book in which the plain- nection, although the case does not, tiff had set down measurements of on facts, belong to the class of cases the lumber from memoranda placed on which is covered by the annotation, tally boards by the persons making attention is called to Seaboard Air the measurements was properly re- Line R. Co. V. Railroad Comrs. ceived in evidence, although one of (1910) 86 S. C. 91, 138 Am. St. Rep. the measurers was out of the state and 1028, 67 S. E. 1069, where, on the did not verify the measurements; the question of reasonableness of rates tally boards and the memoranda ob- of a carrier, the court said that it tained from the measurers having would be a practical denial of justice been destroyed. The court does not to require it to produce all the way. seem to regard absence from the state bills, tickets, reports, and other inof the measurer, where, as in this numerable memoranda made by its case, it did not appear but that the multitude of employees; that the plaintiff knew his whereabouts, as entries made of the aggregation of sufficient necessarily to excuse the these, on the company's books of taking at least of his deposition, but original entry, kept in good faith for places its decision largely on the the purpose of showing the course ground that the testimony of the of its business and its profits and original observer may be dispensed losses, were admissible as evidence with where the practical inconven- of such transactions. ience of producing him as

a wit

IV. Statutes. ness would, in the particular case, out

Attention is here called to several weigh the probable utility of doing so; decisions which have construed or apalthough it is said, also, that the show- plied statutes relating to the present ing that the party in question was subject, without, of course, attempt. out of the state at the time of the

ing to state the statutory rule in any trial supported the court's ruling ad- jurisdiction except as shown in the mitting the books in evidence, the cases.

Under the Oklahoma statute it has of, on certain conditions, as, that the been held that verification by the party kept no clerk or the clerk was salesmen is unnecessary, the court in dead or otherwise inaccessible, and Navarre v. Honea (1914) 41 Okla. on proof that the books tendered 480, 139 Pac. 310, holding, as stated were those of original entries, that in the syllabus by the court, that he usually kept correct books, and "where, in a mercantile business, the that, on inspection by the court, they usual course is for each salesman, were free from any suspicion of at the time of the sale, to make a fraud, was said in Bracken v. Dillon memorandum thereof in the form of (1879) 64 Ga. 243, 37 Am. Rep. 70, a 'credit ticket,' with carbon copy then to be a codification of the Georgia delivered to the purchaser, and, at law on that subject embodied in the the end of each day, to deliver to the adjudications of the court. And in bookkeeper the original of such this case it was held that if the ticket, from which, on the same or clerks who sold and delivered the next following day, the bookkeeper goods were alive and accessible, they correctly, and in the usual course of should be called as witnesses, and said business, enters same in a day- that, without doing so, the account book, such daybook is admissible in could not be proved by the merchant's evidence, upon the testimony of the books, because of this better evibookkeeper alone to the facts here- dence which it was possible to proin before recited, under $ 4277, Okla. duce. Stat. 1893." This statute provided : In Wisconsin a statute was enacted "Entries in books of account may be providing for the admission of book admitted in evidence, when it is made entries in certain cases when the to appear by the oath of the per- court was satisfied that they were son who made the entries, that such genuine and in other respects within entries are correct, and were made at the provisions of the act, and also or near the time of the transaction providing that, in case of entries to which they relate, or upon proof made in the usual course of business of the handwriting of the person who as a part of the system of keeping made the entries, in case of his death a record of such transactions, it or absence from the county."

should be unnecessary to produce as In Kaplan v. Gross (1916) 223 Mass. witnesses all of the persons subject 152,' 111 N. E. 853, the court referred, to subpæna who were engaged in the without setting out the same, to a making of such entries, but that, “bestatute enacted in 1913 as intended fore such entries are admitted, the to change the rule laid down in the court shall be satisfied that they are earlier cases in that state (see II. genuine and in other respects withb, 1 and 2, supra). It was said that in the provisions of this section.” the statute undoubtedly was passed to It

said in Feuchtwanger v. relieve against the hardships some- Manitowoc Malting Co. (1911) 109 C. times experienced in making proof in C. A. 461, 187 Fed. 713, that the accordance with the law there laid statute did not make hearsay down. But it was held in this case entry inadmissible

if better that the statute did not apply to and direct evidence was available and items in a stock inventory, as by its practicable. See also, applying the terms it was applicable only to "an statute, Wisconsin Steel Co. v. Maryentry in an account kept in a book, land Steel Co. (1913) 121 C. C. A. or by a card system, or by any other 507, 203 Fed. 403, under III. c, supra. system of keeping accounts;" in The rule that where entries are other words, only to an entry in an made in books of account by a clerk account book.

who has no personal knowledge of The Georgia statute declaring ad- their correctness at the time, the missible books of account of a mer- entrant cannot prove the account chant and others doing a regular busi- without the corroborating testimony ness and keeping daily entries there- of the person who did the acts and

was

a

even

as

reported them for entry, was held in hampered by statutory restrictions, Loveman, Joseph & Loeb v. McQueen permit the use of shopbook entries in (1919) 203 Ala. 280, 82 So. 530, not cases like this, when properly kept to have been changed by the statute and authenticated, independent in that state declaring that books of evidence of the correctness of acaccount of any merchant, shopkeeper, counts, without requiring corroboratphysician, blacksmith, or other per- ing testimony of the correctness of the son doing a regular business and items thus entered, though the witkeeping daily entries thereof, may be nesses thereto are neither disqualified admitted in evidence as proof of nor inaccessible. But we are consuch accounts upon the conditions: strained to hold that, under our stat(1) That he kept no clerk or else ute, the trial court did not err in that the clerk was dead or otherwise excluding the book entries here inaccessible or disqualified from tes- offered, in the absence of any showing tifying; (2) upon proof (the party's that the clerks and employees who oath being sufficient) that the book sold the goods or rendered the servtendered is his book of original entries, ices charged against defendant were (3) upon inspection by the court to inaccessible to legal process, or legalsee if the books are free from any ly disqualified from testifying. Of suspicion of fraud. The court said: course, if the name and identity of “We think it is clear that the purpose the salesman and mechanics who of this statute is to make book en- sold the goods and did the work which tries, of the character specified, are the subject-matter of these

of independent evidence of an account entries are unknown to defendant, and -that is, evidence per se without cannot be ascertained, they are in a the corroborating testimony of the true sense 'inaccessible to process;' actual transactor of the business- and, if this fact be shown to the court, only upon the conditions expressly their absence would be legally acnamed in the statute. If, having no counted for, and the book entries clerk, the party has of necessity would be admissible, as original evitransacted all business and made all dence, under the very terms of the entries himself, and shows that the statute. But no such showing was book tendered is his book of original made.” entries, he need not testify to the

V. Miscellaneous. correctness of the entries. But, if he had a clerk who made all or some

The question of the necessity of of the entries, the clerk's entries

specific objection to the items of acmust be identified by the testimony count which were inadmissible is of the clerk, unless he is inaccessible

presented in New York v. Second as a witness, or disqualified from

Ave. R. Co. (1886) 102 N. Y. 572, 55 testifying. In the latter case, the

Am. Rep. 839, 7 N. E. 905, where clerk's entries, made in due course

certain items of an account of maand properly identified, become admis- terials furnished, made by a general sible as independent evidence. It is,

foreman, were admissible because of we think, sufficiently clear that the

the production of evidence, not only statute does not change, and

of the person making up the account, not intended to change, the pre

but of a gang foreman who furnished existing requirement of our common

the information and had personal law that the party making the entries knowledge of its correctness, but must have had personal knowledge

other items were inadmissible because of the transactions entered by him, they were furnished by a gang in order render his entries

foreman who had no personal know!admissible as independent evidence, edge, but who derived his informawithout corroborating proof of their tion from carmen who delivered the correctness.

We approve the material and who were not called as reasoning and the sound policy of witnesses; and it was held that, to the modern decisions which, exclude the latter evidence, specific

was

to

un

objection thereto was necessary, and ly shall be equivalent to a present that a general objection to the whole affirmation of the truth of their conaccount was not available on appeal tents, see, among possibly other to raise the question of admissibility cases, the following: Dismukes v. of these latter items.

Tolson (1880) 67 Ala. 386; Hart v. To the general effect that it is es- Kendall (1887) 82 Ala. 144, 3 So. 41; sential to the admissibility of entries McDonald v. Carnes (1890) 90 Ala. made by a living witness that he 147, 7 So. 919; J. Snow Hardware Co. shall be able to state that at or v. Loveman (1901) 131 Ala. 221, 31 about the time the entries were made So. 19; Kerns v. McKean (1888) 76 he knew their contents and knew them Cal. 87, 18 Pac. 122; Kerns v. Dean to be true, so that the entries and the (1888) 77 Cal. 555, 19 Pac. 817. testimony of the witness concurrent

R. E. H.

FRED W. GRAVENHORST, Respt.,

V. LEOPOLD ZIMMERMAN et al., Composing the Firm of Zimmerman &

Forshay, Appts.

New York Court of Appeals - May 1, 1923.

(236 N. Y. 22, 139 N. E. 766.)

Bank - construction of exemption provision.

1. A provision in a contract by a bank to transmit funds to a foreign country, relieving it from liability for delayed payment or nonpayment because of delay or error on the part of the cable company, does not include nonpayment because of total suspension of telegraphic or mail communications.

[See note on this question beginning on page 1488.] Trial — summary judgment for plain- agents of the buyer, for whose nontiff – when improper.

action the bank is not responsible be2. Summary judgment cannot be yond interest to the time the credit granted for plaintiff if defendant pre- can be established. sents a defense creating a genuine Evidence of custom when adand substantial issue.

missible. Bank — contract to transfer money 5. Evidence of custom is permitted character.

for the purpose of qualifying the 3. A contract by a bank for a cash meaning of a contract otherwise amconsideration to transfer funds to a biguous, and of providing for inciforeign country, followed by wireless dents not in contradiction of the direction to its correspondent in such fundamental provisions of the concountry to place the funds to the tract, and of supplying omissions uncredit of a designated bank for ac- der certain circumstances which have count of the beneficiary, is an execu- occurred in the agreement of the partory agreement, and not an executed ties. sale of exchange.

[See 27 R. C. L. 169, 173; 3 R. C. Custom – respecting foreign L. Supp. 1508; 4 R. C. L. Supp. 1744.]

change how far controls con- -when not admissible. tract.

6. Evidence of custom is not per4. An agreement by a banker to mitted for the purpose of contradicttransmit funds to a foreign country ing agreements which the parties have is not controlled by a custom that the made, or for the purpose of accombank does not actually obligate itself plishing an unfair or immoral conto make the transfer, but that the struction of their contracts. telegraph and postal authorities are [See 27 R. C. L. 172.}

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Rescission – of contract for trans. although the contract does not exmission of funds — right.

plicitly specify it. 7. One contracting with a bank for [See 6 R. C. L. 899; 2 R. C. L. Supp. transmission of funds to a foreign 239.] country is not precluded from re

Rescission how effected. scinding the contract when perform

10. Rescission of a contract may be ance becomes impossible because the means of communication are closed by

a matter of acts as well as of words.

[See 6 R. C. L. 932.] war, by the rules requiring restoration of anything received or nonen- - effect of subsequent negotiation. larging of injury because of change 11. One cannot by words cancel his of position.

contract, and then continue to assert Bank — contract to transmit funds

rights and benefits and negotiate requirement of speed.

under it. 8. The requirement of speed in a

[See 6 R. C. L. 936; 4 R. C. L. Supp. contract for transmission of funds to

452.] a foreign country by wireless is not - effect of delay. eliminated by a provision that upon 12. A letter asserting a rescission certain contingencies, such as mutila- of a contract for transmission of tion of the wireless message, perform- funds to a foreign country is made ance may be delayed for arrival of the

ineffective as a basis for summary written confirmation.

judgment in favor of one seeking reContract time as element.

covery of the money paid, by subse9. When a contract fairly leads to quent negotiations and a delay of the inference that time is an essential over three years before taking steps consideration and feature, enforce- to recover the amount paid for the ment of such feature will be given, transmission.

(Crane, J., dissents.)

APPEAL by defendants from a judgment of the Appellate Division of the Supreme Court, Second Department, affirming a judgment of a Special Term for Kings County, Part I. (Callaghan, J.), granting plaintiff's

, motion for summary judgment, in an action brought to recover money alleged to have been paid to defendants in consideration of their agreement to transmit credit to a foreign county. Reversed.

The facts are stated in the opinion of the court.

Mr. Osmond K. Fraenkel, with Mr. Supp. 231; Sommer v. Taylor, 190 N. Louis Werner, for appellants:

Y. Supp. 153; Plischner v. Taylor, 193 There has been no failure of con- N. Y. Supp. 236; Fliker v. State Bank, sideration which entitles plaintiff to 94 Misc. 609, 159 N. Y. Supp. 730; reseind.

Beecher v. Cosmopolitan Trust Co. 239 American Exp. Co. v. Cosmopolitan Mass. 48, 131 N. E. 338. Trust Co. 239 Mass. 249, 132 N. E. Since time was not originally of the 26; Foreign Trade Bkg. Corp. v. essence of the contract, and was Cosmopolitan Trust Co. 240 Mass. 413, never made of the essence, and there 134 N. E. 403; Suse v. Pompe, 8 C. B

no repudiation by defendants, N. S. 538, 141 Eng. Reprint, 1276, 30 but merely delay, there can be no reL. J. C. P. N. S. 75, 7 Jur. N. S. 166, scission by plaintiff. 3 L. T. N. S. 17, 9 Week. Rep. 15; Re A. Legniti v. Mechanics & Metals Nat. Bolognesi & Co. 166 C. C. A. 216, 254 Bank, 230 N. Y. 415, 16 A.L.R. 185, 130 Fed. 770; Gelfand v. State Bank, 172 N. E. 597; Graves v. White, 87 N. Y. N. Y. Supp. 99; Atlantic Communica- 463; Dubois v. Delaware & H. Canal tion Co. v. Zimmermann, 182 App. Div. Co. 4 Wend. 290; Hubbell v. Pacific 862, 170 N. Y. Supp. 275; Chemical Mut. Ins. Co. 100 N. Y. 41, 2 N. E. Nat. Bank v. Equitable Trust Co. 201

470; Ehrensperger v. Anderson, 3 App. Div. 485, 194 N. Y. Supp. 177; Exch. 148, 154 Eng. Reprint, 793, 18 Katcher v. American Exp. Co. 94 N. J. L. J. Exch. N. S. 132; Taylor v. Goelet, L, 165, 109 Atl. 741; Alemian v. Amer- 208 N. Y. 253, 101 N. E. 867, Ann. ican Exp. Co. 237 Mass. 580, 130 N. E. Cas. 1914D, 284; Pierson & Co. v. 253; Oshinsky v. Taylor, 172 N. Y. American Steel Export Co. 194 App.

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