to know the quantity delivered or the times of delivery; nor could their testimony always be had. The book, then, kept in the usual order of such transactions, was properly received."

In Squires v. O'Connell (1916) 91 Vt. 35, 99 Atl. 268, the court said that it seemed to be well settled that the various inferior employees of a large business, whose memoranda of time, materials, receipts, deliveries, and the like, are the basis of the account, need not be called as witnesses; but that the ordinary protection of others requires that the supervising employees, under whose management and observation this work is carried on, and who receive, consolidate, and transmit this data to those who make up the permanent account, should be called if reasonably accessible.

Squires v. O'Connell (Vt.) supra, was an action to recover for the cutting and storing of lumber, in which the only question was as to the amount of the lumber; and it was held that a book in which the plaintiff had set down measurements of the lumber from memoranda placed on tally boards by the persons making the measurements was properly received in evidence, although one of the measurers was out of the state and did not verify the measurements; the tally boards and the memoranda obtained from the measurers having been destroyed. The court does not seem to regard absence from the state of the measurer, where, as in this case, it did not appear but that the plaintiff knew his whereabouts, as sufficient necessarily to excuse the taking at least of his deposition, but places its decision largely on the ground that the testimony of the original observer may be dispensed with where the practical inconvenience of producing him as a witness would, in the particular case, outweigh the probable utility of doing so; although it is said, also, that the showing that the party in question was out of the state at the time of the trial supported the court's ruling admitting the books in evidence, the

controlling principle being that of practical necessity, and that the party's unavailability as a witness was a sufficient ground for dispensing with his testimony in corroboration of the entries made on his reports.

On the question of what cars were destroyed in a certain yard by a mob, record books of the railway company were held admissible, in Pittsburgh, C. C. & St. L. R. Co. v. Chicago (1909) 242 Ill. 178, 44 L.R.A.(N.S.) 358, 134 Am. St. Rep. 316, 89 N. E. 1022, the entries being shown to be correctly copied in the regular course of business from reports by conductors and other employees as to the construction and classification of cars, and their arrival and departure from yards. But the court does not discuss the question of the necessity of calling the original observers or informers, and it appears in this instance that the testimony of a number of the conductors, as well as the reports made by them, was admitted in evidence.

Of possible interest in this connection, although the case does not, on facts, belong to the class of cases which is covered by the annotation, attention is called to Seaboard Air Line R. Co. V. Railroad Comrs. (1910) 86 S. C. 91, 138 Am. St. Rep. 1028, 67 S. E. 1069, where, on the question of reasonableness of rates of a carrier, the court said that it would be a practical denial of justice to require it to produce all the waybills, tickets, reports, and other innumerable memoranda made by its multitude of employees; that the entries made of the aggregation of these, on the company's books of original entry, kept in good faith for the purpose of showing the course of its business and its profits and losses, were admissible as evidence of such transactions.

IV. Statutes.

Attention is here called to several decisions which have construed or applied statutes relating to the present subject, without, of course, attempting to state the statutory rule in any jurisdiction except as shown in the

cases.

Under the Oklahoma statute it has been held that verification by the salesmen is unnecessary, the court in Navarre v. Honea (1914) 41 Okla. 480, 139 Pac. 310, holding, as stated in the syllabus by the court, that "where, in a mercantile business, the usual course is for each salesman, at the time of the sale, to make a memorandum thereof in the form of a 'credit ticket,' with carbon copy then delivered to the purchaser, and, at the end of each day, to deliver to the bookkeeper the original of such ticket, from which, on the same or next following day, the bookkeeper correctly, and in the usual course of said business, enters same in a daybook, such daybook is admissible in evidence, upon the testimony of the bookkeeper alone to the facts hereinbefore recited, under § 4277, Okla. Stat. 1893." This statute provided: "Entries in books of account may be admitted in evidence, when it is made to appear by the oath of the person who made the entries, that such entries are correct, and were made at or near the time of the transaction to which they relate, or upon proof of the handwriting of the person who made the entries, in case of his death or absence from the county."

In Kaplan v. Gross (1916) 223 Mass. 152, 111 N. E. 853, the court referred, without setting out the same, to a statute enacted in 1913 as intended to change the rule laid down in the earlier cases in that state (see II. b, 1 and 2, supra). It was said that the statute undoubtedly was passed to relieve against the hardships sometimes experienced in making proof in accordance with the law there laid down. But it was held in this case that the statute did not apply to items in a stock inventory, as by its terms it was applicable only to "an entry in an account kept in a book, or by a card system, or by any other system of keeping accounts;" in other words, only to an entry in an account book.

The Georgia statute declaring admissible books of account of a merchant and others doing a regular business and keeping daily entries there

of, on certain conditions, as, that the party kept no clerk or the clerk was dead or otherwise inaccessible, and on proof that the books tendered were those of original entries, that he usually kept correct books, and that, on inspection by the court, they were free from any suspicion of fraud, was said in Bracken v. Dillon (1879) 64 Ga. 243, 37 Am. Rep. 70, to be a codification of the Georgia law on that subject embodied in the adjudications of the court. And in this case it was held that if the clerks who sold and delivered the goods were alive and accessible, they should be called as witnesses, and that, without doing so, the account could not be proved by the merchant's books, because of this better evidence which it was possible to produce.

In Wisconsin a statute was enacted providing for the admission of book entries in certain cases when the court was satisfied that they were genuine and in other respects within the provisions of the act, and also providing that, in case of entries made in the usual course of business as a part of the system of keeping a record of such transactions, it should be unnecessary to produce as witnesses all of the persons subject to subpoena who were engaged in the making of such entries, but that, "before such entries are admitted, the court shall be satisfied that they are genuine and in other respects within the provisions of this section." It was said in Feuchtwanger Manitowoc Malting Co. (1911) 109 C. C. A. 461, 187 Fed. 713, that the statute did not make a hearsay entry inadmissible even if better and direct evidence was available and practicable. See also, applying the statute, Wisconsin Steel Co. v. Maryland Steel Co. (1913) 121 C. C. A. 507, 203 Fed. 403, under III. c, supra.

V.

The rule that where entries are made in books of account by a clerk who has no personal knowledge of their correctness at the time, the entrant cannot prove the account without the corroborating testimony. of the person who did the acts and

reported them for entry, was held in Loveman, Joseph & Loeb v. McQueen (1919) 203 Ala. 280, 82 So. 530, not to have been changed by the statute in that state declaring that books of account of any merchant, shopkeeper, physician, blacksmith, or other person doing a regular business and keeping daily entries thereof, may be admitted in evidence as proof of such accounts upon the conditions: (1) That he kept no clerk or else that the clerk was dead or otherwise inaccessible or disqualified from testifying; (2) upon proof (the party's oath being sufficient) that the book tendered is his book of original entries, (3) upon inspection by the court to see if the books are free from any suspicion of fraud. The court said: "We think it is clear that the purpose of this statute is to make book entries, of the character specified, independent evidence of an account —that is, evidence per se without the corroborating testimony of the actual transactor of the businessonly upon the conditions expressly named in the statute. If, having no clerk, the party has of necessity transacted all business and made all entries himself, and shows that the book tendered is his book of original entries, he need not testify to the correctness of the entries. But, if he had a clerk who made all or some of the entries, the clerk's entries must be identified by the testimony of the clerk, unless he is inaccessible as a witness, or disqualified from testifying. In the latter case, the clerk's entries, made in due course and properly identified, become admissible as independent evidence. It is, we think, sufficiently clear that the statute does not change, and was not intended to change, the preexisting requirement of our common law that the party making the entries must have had personal knowledge. of the transactions entered by him, in order to render his entries admissible as independent evidence, without corroborating proof of their correctness. . . We approve the reasoning and the sound policy of the modern decisions which, un

hampered by statutory restrictions, permit the use of shopbook entries in cases like this, when properly kept and authenticated, as independent evidence of the correctness of accounts, without requiring corroborating testimony of the correctness of the items thus entered, though the witnesses thereto are neither disqualified nor inaccessible. But we are constrained to hold that, under our statute, the trial court did not err in excluding the book entries here offered, in the absence of any showing that the clerks and employees who sold the goods or rendered the services charged against defendant were inaccessible to legal process, or legally disqualified from testifying. Of course, if the name and identity of the salesman and mechanics who sold the goods and did the work which are the subject-matter of these entries are unknown to defendant, and cannot be ascertained, they are in a true sense 'inaccessible to process;' and, if this fact be shown to the court, their absence would be legally accounted for, and the book entries would be admissible as original evidence, under the very terms of the statute. But no such showing was made."

V. Miscellaneous.

The question of the necessity of specific objection to the items of account which were inadmissible is presented in New York v. Second Ave. R. Co. (1886) 102 N. Y. 572, 55 Am. Rep. 839, 7 N. E. 905, where certain items of an account of materials furnished, made by a general foreman, were admissible because of the production of evidence, not only of the person making up the account, but of a gang foreman who furnished the information and had personal knowledge of its correctness, but other items were inadmissible because they were furnished by a gang foreman who had no personal knowledge, but who derived his information from carmen who delivered the material and who were not called as witnesses; and it was held that, to exclude the latter evidence, specific

objection thereto was necessary, and that a general objection to the whole account was not available on appeal to raise the question of admissibility of these latter items.

To the general effect that it is essential to the admissibility of entries made by a living witness that he shall be able to state that at or about the time the entries were made he knew their contents and knew them to be true, so that the entries and the testimony of the witness concurrent

ly shall be equivalent to a present affirmation of the truth of their contents, see, among possibly other cases, the following: Dismukes v. Tolson (1880) 67 Ala. 386; Hart v. Kendall (1887) 82 Ala. 144, 3 So. 41; McDonald v. Carnes (1890) 90 Ala. 147, 7 So. 919; J. Snow Hardware Co. v. Loveman (1901) 131 Ala. 221, 31 So. 19; Kerns v. McKean (1888) 76 Cal. 87, 18 Pac. 122; Kerns v. Dean (1888) 77 Cal. 555, 19 Pac. 817.

R. E. H.

Bank

communications.

5. Evidence of custom is permitted for the purpose of qualifying the meaning of a contract otherwise ambiguous, and of providing for incidents not in contradiction of the fundamental provisions of the contract, and of supplying omissions under certain circumstances which have occurred in the agreement of the parties.

[See 27 R. C. L. 169, 173; 3 R. C. L. Supp. 1508; 4 R. C. L. Supp. 1744.] -when not admissible.

6. Evidence of custom is not permitted for the purpose of contradicting agreements which the parties have made, or for the purpose of accomplishing an unfair or immoral construction of their contracts. [See 27 R. C. L. 172.3

There has been no failure of consideration which entitles plaintiff to rescind.

American Exp. Co. v. Cosmopolitan Trust Co. 239 Mass. 249, 132 N. E. 26; Foreign Trade Bkg. Corp. v. Cosmopolitan Trust Co. 240 Mass. 413, 134 N. E. 403; Suse v. Pompe, 8 C. B N. S. 538, 141 Eng. Reprint, 1276, 30 L. J. C. P. N. S. 75, 7 Jur. N. S. 166, 3 L. T. N. S. 17, 9 Week. Rep. 15; Re A. Bolognesi & Co. 166 C. C. A. 216, 254 Fed. 770; Gelfand v. State Bank, 172 N. Y. Supp. 99; Atlantic Communication Co. v. Zimmermann, 182 App. Div. 862, 170 N. Y. Supp. 275; Chemical Nat. Bank v. Equitable Trust Co. 201 App. Div. 485, 194 N. Y. Supp. 177; Katcher v. American Exp. Co. 94 N. J. L. 165, 109 Atl. 741; Alemian v. American Exp. Co. 237 Mass. 580, 130 N. E. 253; Oshinsky v. Taylor, 172 N. Y.

Supp. 231; Sommer v. Taylor, 190 N. Y. Supp. 153; Plischner v. Taylor, 193 N. Y. Supp. 236; Fliker v. State Bank, 94 Misc. 609, 159 N. Y. Supp. 730; Beecher v. Cosmopolitan Trust Co. 239 Mass. 48, 131 N. E. 338.

Since time was not originally of the essence of the contract, and was never made of the essence, and there was no repudiation by defendants, but merely delay, there can be no rescission by plaintiff.

Legniti v. Mechanics & Metals Nat. Bank, 230 N. Y. 415, 16 A.L.R. 185, 130 N. E. 597; Graves v. White, 87 N. Y. 463; Dubois v. Delaware & H. Canal Co. 4 Wend. 290; Hubbell v. Pacific Mut. Ins. Co. 100 N. Y. 41, 2 N. E. 470; Ehrensperger v. Anderson, 3 Exch. 148, 154 Eng. Reprint, 793, 18 L. J. Exch. N. S. 132; Taylor v. Goelet, 208 N. Y. 253, 101 N. E. 867, Ann. Cas. 1914D, 284; Pierson & Co. v. American Steel Export Co. 194 App.