Sullivan v. Miller, 169 Ill. App. 607 (1912)

April 19, 1912 · Illinois Appellate Court · Gen. No. 16,582

169 Ill. App. 607

P. W. Sullivan, Defendant in Error, v. Joseph Miller et al., Plaintiffs in Error.

Gen. No. 16,582.

Evidence—when boolcs of account competent to refresh recollection. Books of account regularly kept by the plaintiff in his own handwriting in the ordinary course of business if testified to as true and correct and as containing entries contemporaneous with the facts sought to be established and known to be correct when made may be employed for the purpose of refreshing recollection.

Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding.

Heard in the Branch Appellate Court at the October term, 1910.

Affirmed.

Opinion filed April 19, 1912.

Leo Koretz, for plaintiffs in error.

P: E. O’Neil and P. W. Sullivan, for defendant in error.

Mr. Justice F. A. Smith

delivered the opinion of the court.

An action was brought by the defendant in error, P. W. Sullivan, in the Municipal Court of Chicago for legal services against Joseph Miller and Lizzie B. Miller, plaintiffs in error, who are husband and wife, and were engaged in the teaming and express business in Chicago. The itemized statement of claim sued upon included five notes executed by plaintiffs in error and given for other legal services. On the trial the court entered judgment against the plaintiffs in error for $190.58.

It is urged as to some of the items contained in the statement of claim the defendant in error had been paid. As to other items it is claimed the proof is insufficient to sustain the judgment; and as to other items the plaintiff in error Mrs. Miller is not liable jointly with her husband, and that as to still other items plaintiff in error Miller is not jointly liable with his wife.As to the largest item of $100 for services rendered in the suit of Lizzie B. Miller v. Thomas M. Hunter, it is urged that the case was prosecuted by defendant in error on a contingency basis and that Mrs. Miller was-not to pay him anything except the costs unless a recovery was had.

Upon a consideration of the evidence and the briefs and arguments of counsel we are of the opinion that the evidence sustains the finding of the court.

It is urged that the trial court erred in permitting defendant in error to prove his case by reading the various items of his claim from his books of account which were introduced in evidence. The testimony shows that the books were a regular set of books of account kept by the defendant in error in his own handwriting in the ordinary course of his business, and that they were just and true. The witness knew that the facts were recorded at the time or when they were fresh in his memory. There was no error in permitting the witness to refresh his memory therefrom. Diamond Glue Co. v. Wietzychowski, 227 Ill. 338. We find no reversible error in the rulings of the court with regard to evidence.

The judgment is affirmed.

Affirmed.