Harbison v. Hall, 124 N.C. 626 (1899)

May 5, 1899 · Supreme Court of North Carolina

124 N.C. 626

JOHN J. HARBISON, JOSEPH B. HARBISON, OWEN GATHRIGHT, JR., and WALTER WALKER, trading as Harbison & Gathright, v. JOSEPH S. HALL.

(Decided May 5, 1899).

Conflict of Evidence — Corroborative Testimony — Business Usage — Account—Payment.

1. Where, there is a conflict of evidence as to the payment of the account in suit — the defendant testifying that it was paid, and one of plaintiffs testifying that it was not paid, evidence of the custom of the plaintiff firm in regard to their system of entries in their books, when checks and moneys were received, and that their books failed to show any evidence of payment by defendant — is admissible as corroborative testimony.

2. Circumstances showing the business methods and usages of the firm might assist the jury in arriving at the truth of the matter.

Civil ActioN on an account for $88.38, for goods sold and delivered, taken by appeal from the Justice’s Court of GeaN-villtd County to the Superior Court.

Case on Appeal.

This civil action, to recover for goods sold and delivered, to the defendants by the plaintiffs, was tried at the November Term, 1898, of Granville County Superior Court, before Timberlalce, J., and a jury. The plaintiffs first offered in evidence an itemized statement of their account against the defendant, duly verified before a Notary Public, which said account showed that the goods were sold and delivered to the defendant in March and April, 1895.

Plaintiffs then offered the depositions of Walter Walker, and 0. W. Huggins. Upon objection by the defendant the following questions and answers in tbe depositions of Walter Walker were excluded by tbe Court, and tbe plaintiffs excepted:

Q. Wbat bas been tbe custom of tbe bouse in regard to tbe receipt of money whilst you bave been so connected with, it? A. All checks, moneys and receipts pass through my bands, and -I enter same on tbe cash book, and bave bad charge of all tbe books of the concern, and tbe making of deposits in tbe banks, and a general supervision of all money transactions which bad to pass through my bands.

Q. Have you made any investigation of your books to ascertain if the amount bas been paid; if so, to wbat extent bave you made an investigation? A. We bave; we bave not only looked over our books carefully, but bave thoroughly examined our letter files to see whether any remittance sheet bad ever been received from Mr. Hall, and find that be bas never made any payment on this account.

Q. Is it possible, or probable, that tbe defendant in this case may bave made a payment on bis account, which may bave been credited to tbe wrong account, or omitted? A. That is not possible under tbe system under which we keep our books. If our cash bad been out of balance, and over, we would certainly bave known that some payment bad been made which we bad not credited, and we would bave at once traced up tbe matter. If tbe payment bad been credited to some other party, it would bave been discovered in re-eheck-ing. I can state, however, that there was no such want of balance in our books.

Q. If the defendant bad not paid this 'debt sued for, bow did your firm happen to wait on him so long ? A. Hall bad a fair rating, and having a great number of accounts on our books, we only reached bis account from time to time, when v7e dunned him for same. Getting uneasy about it after a long time, we spoke to our salesman wbo travels that territory, and came to the conclusion that Hall was good for tbe amount, and would ultimately pay. Preferring not to go into litigation with him about it, we delayed from time to time, until a considerable period had elapsed. Had he at any time previously repudiated the account, we would have put the matter in the hands of our attorney sooner.

Upon objection by defendant the following questions and answers in the deposition of C. W. Huggins were excluded by the Court, and the plaintiffs excepted:

Q. Have you examined the books to see whether the account of Joseph S. Hall, or any part of it, was paid during your connection with the firm? A. Yes, sir; I have examined them. They do not show that any part of that account has ever been paid. Where no letter comes with the remittance, we always make a memorandum of the man’s name and address, with the amount he paid,-and the bill it is intended to settle, or any part of the account it is intended to settle, or whether it is simply on account, on a special slip of paper we have for the purpose, and that is filed away in our letter files just as if it were a remittance letter. An examination of our files, which are very carefully kept, shows no such slip, or no remittance letter from this party.

Q. What was the habit of the firm during your connection with it as to giving receipts ? A. Always on receipt of these checks or remittances of any kind, after checking them up by the books I immediately wrote a receipt right from the letter or remittance; no time ever expired between the checking up and the sending of receipts; it was always done immediately. So there was no chance of any slip in not sending a receipt to any one. In that connection I would say that checks to the order of the firm were promptly endorsed by the firm and deposited in bank for collection, and the party would have the endorsement of the firm upon the check, in addition to tbe receipt, as evidence o£ payment. If remittance was made by postoffice order, be would, of course, bave tbe records of tbe postoffice to refer to; or if made by express be would bave tbe receipt of tbe express company, all of wbicb would be in addition to tbe receipt wbicb I would send bim.

Q. Wbat was tbe babit of tbe firm in regard to tbe collection of past due accounts? A. As fast as accounts were due, we would immediately send a statement to tbe party owing same, and tbis was usually done several times, and if not paid, a draft would be sent. At regular intervals statements were sent to every one owing bills due and past due, and tbis was done in tbis case.

Q. How did it happen that you were so late in putting tbis account in your attorney’s bands ? A. Tbe defendant in tbe case bad a good rating, and special attention was generally given to tbe weaker accounts, and on account of bis rating we allowed tbe matter to go longer than would otherwise bave been done.

Plaintiffs offered no further evidence.

Defendant was examined as a witness in bis own behalf, and testified that tbe account was correct in amount, but several of tbe articles embraced therein were purchased from other parties than tbe plaintiffs; that be ordered these articles through tbe salesman of tbe plaintiffs; that be bad paid in full to tbe plaintiffs and tbe other parties, tbe amount now claimed by plaintiffs.

Evidence of the good character of tbe defendant was offered and tbe plaintiffs admitted that bis character was good.

Tbe following issues were submitted to tbe jury:

(1). Is tbe defendant indebted to tbe plaintiffs ?

Answer: No. (By jury).

(2). If so, in wbat amount? Answer:

His Honor charged tbe jury that tbe defendant, having admitted the account and pleaded payment, the burden of proving payment was on the defendant. There was judgment for defendant upon the verdict, and plaintiffs moved for a new trial. Motion denied.

Plaintiffs excepted and appealed to the Supreme Court, and assigned as error the exclusion of evidence as hereinbefore appears.

E. W. TimbeRlaKe, J.

II. M. Shaw, for appellant.

Edwards & Royster and J. B. Batchelor, for appellee.

Eairclotii, C. J.

Action for goods sold and delivered. Plea: Payment. The defendant testified that he had paid the entire account. One of the plaintiffs testified that the account had not been paid. The plaintiffs then offered to show by their cashier and bookkeeper, in corroboration of their testimony, the custom of the firm in regard to their system of entries in their books, when checks and moneys, etc., were received, and that an investigation of the„books failed to show any evidence of payment by the defendant. This evidence was excluded by the Court, and the plaintiffs excepted and appealed.

There is error. The evidence was competent in support of the positive testimony of the plaintiffs. These were circumstances showing the business methods and usages of the firm, which might assist the jury in arriving at the truth of the matter. Such usage has been held competent. Bank v. Pinkers, 82 N. C., 371; Vaughan v. Railroad, 63 N. C., 11; I Greenleaf Ev., (1896), Sections 116 and 118.

Error.