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Apache County v. Whiting

Supreme Court of Arizona

December 9, 1940

SCHOOL DISTRICT No. 1, APACHE COUNTY, Appellant,
v.
E. I. WHITING, Doing Business Under the Firm Name and Style of THE CASH STORE, Appellee

APPEAL from a judgment of the Superior Court of the County of Apache. Levi S. Udall, Judge. Judgment reversed and cause remanded with instructions.

Mr. Earl Platt, for Appellant.

Mr. F. Ray Brown, for Appellee.

OPINION

[56 Ariz. 335] LOCKWOOD, J.

E. I. Whiting, doing business under the firm name and style of The Cash Store, hereinafter called plaintiff, brought suit against School District No. 1 of Apache County, hereinafter called defendant, for the value of goods, wares and merchandise furnished by plaintiff to defendant. Defendant answered, denying the material allegations of the complaint, and alleging as a special defense that if the goods were furnished they were for the construction of a new school building for District No. 1, and that the only persons authorized to order goods for such purpose, to wit, the board of supervisors of Apache county, had not ordered them and, indeed, expressly refused to authorize their purchase. Defendant also counterclaimed for an alleged overpayment of several items which were legitimately a charge against the district. The case came on for trial before the court [56 Ariz. 336] sitting with a jury, and judgment was rendered in favor of plaintiff on his complaint, and of defendant on its cross-complaint. Thereafter, defendant brought the judgment against it before us for review. No appeal was taken by plaintiff for the judgment on the cross-complaint.

There are two questions of law for our consideration on the appeal. The first is as to the admissibility of certain evidence. Plaintiff endeavored to prove the sale and delivery of the goods on which his action was based by a certain book of account. He testified that the accounts against defendant, which were contained in this book, were in the handwriting of his daughter and of one Deway Farr, identifying the particular items, and that at the time the entries were made the entrants were in his employ, and their duties were to keep the accounts in question. He explained fully the method in which the accounts were kept, but neither of the parties who made the entries were called to identify them, and it was not shown that they were either dead or absent from the jurisdiction of the court. Defendant objected to the admission of the book, contending that before it was admissible the persons who actually made the entries must be called to prove them, or else it must be shown that they were dead or

Page 1076

without the jurisdiction of the court. The objection was overruled and the book admitted, and plaintiff's entire case as to the sale and delivery of the goods, and the reasonable value thereof must rest upon it. Section 4463, Revised Code of 1928, regulates the admissibility of books of account, and reads as follows:

"Books of accounts; prima facie evidence; entries by deceased person. Whenever a party in any action shall produce at the trial his account books, and prove that the same are his account books kept for that purpose, that they contain the original entries for moneys [56 Ariz. 337] paid, goods, or other articles delivered, services performed, or material furnished, that such entries were made at the times of the transactions therein entered, that they are in his handwriting or that of a person authorized to make charges in said books, and are just and true to the best knowledge and belief of the person making such proof, such books, subject, to their credibility, shall be received as prima facie evidence of the charges therein contained. If any book shows that the items have been transferred to a ledger, it shall not be received unless the ledger is produced. Entries made in a book by a person authorized to make the same, he being dead, may be received on proof that the same are in his handwriting.

This section first appeared in our law as paragraph 1756, Revised Statutes of Arizona 1913, and was taken from section 4719, Revised Laws of Minnesota 1905. It apparently first appeared in the Minnesota statutes, in its present form, in 1876. Before that time Minnesota followed the old common law practice of requiring the person who actually made the entries to verify them, but in that year the statute was changed so that the party offering the books was, as under our law, permitted to "prove" that the charges were in the handwriting of the person authorized to make them. In the case of Webb v. Michener, 32 Minn. 48, 19 N.W. 82, 83, the same objection was made to the admission of the books as was made in the present case, to wit, that the party who actually made the entries was not called to prove them, and the court said:

"By the amendment of 1876 material changes were made in the statute in relation to the authentication of account-books. Section 71, c. 73 Gen. St. 1866, which required their verification by a clerk where the original entries were made by him, is repealed, and section 70, which previously provided for the suppletory oath of the party, is amended, so that he is now permitted to 'prove' that the charges are in the [56 Ariz. 338] handwriting of a person authorized to make them, and that they are the original entries of goods sold, etc. It was not necessary, therefore, that Canfield should be called to testify as to the entries made by him and we think the evidence sufficient, in view of the circumstances, to make a prima facie case that the charges were original entries regularly made as the transactions occurred in the usual course of business...."

In Condos v. Andalft, 24 Ariz. 38, 206 P. 594, in passing upon the admissibility of books of account under our statute, we said:

"This question having been made the subject of legislative action, we are bound by the terms of the statute, and we can only examine the evidence in the light of this paragraph to ascertain whether or not it comes within the section...."

Defendant urges that in the case of Sovereign Camp W.O.W. v. Sandoval,47 Ariz. 167, 54 P.2d 557, 558, we held in substance that the statute does not in any manner change the quantum of preliminary evidence required to introduce shop books under the common law. The question involved therein was whether certain records of a physician, showing the ...


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