Hyperlawhypertext legal database Bank of Monroe v. Culver 2 Hill & Den. 531

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Bank of Monroe v. Culver

2 Hill & Den. 531 Court N.Y. Sup. Ct. English

Delivered by Bronson, J.

Contents

Majority

p. 531
Bank of Monroe vs. Culver and others.

Headnote

Where a witness testified in respect to certain entries and memoranda made by him in the usual course of business, that it was his uniform practice to make such entries &c. when the transactions occurred, and to make them truly,-that he had no doubt the entries in question were so made, but that he had no recollection of the facts or transactions to which they related; held, that they might be given in evidence.
[n an action by a bank upon a promissory note, it became material for the plaintiffs to show for what purpose another note was sent to them by the president of a neighboring bank; and held, that the president’s letter enclosing the note, in which he stated that it was sent for collection and credit, was competent evidence as part of the res gesta.
p. 532
Assumpsit tried before Dayton, C. Judge, at the Monroe circuit. The plaintiffs gave in evidence .a promissory note made by the defendants for $766,57, dated April 24, 1837, and payable three months after date. The defence was usury. The defendants read a deposition of N. S. Prentiss, in which he stated facts tending to show that the note in suit was a renewal, in part, of a note of $2000 made by him and the defendants in the year 1834, and discounted by the plaintiffs through the agency of A. M. Schermerhorn, their president, at a usurious rate of interest.. - The witness spoke of several renewals at the bank after partial payments—the note in suit being, as was inferred, the last in the chain. Two other notes were produced, the first dated December 31, 1835, for $700, made by Prentiss and the defendants, and payable at three months; and the other made by the defendants on the 30th December, 1836, at three months, for $749,46. Evidence was given that; these two notes had been discounted by the plaintiffs, and there was presumptive, evidence that the note of $700 was renewed by the one for $749,46, and that- the last mentioned note was renewed by the one now in suit. But there was no direct proof of any connection between these three notes and the $2000 note in relation to which the usury was alleged ; nor was there any proof that the $2000 note had been discounted by the plaintiffs, except what was contained in the deposition of Prentiss ; and that left it somewhat doubtful whether the note was discounted by the plaintiffs, or by Schermerhorn on his own account.
To rebut this evidence, the plaintiffs called J. T. Taiman, the cashier of the bank, and offered to prove from memoranda and entries in the hand-writing of the witness, made at the time the transactions to which they refer occurred, and while he was cashier and had charge of the books and correspondence of the bank—which memoranda and entries the witness would swear he believed were truly and correctly made—the manner in which the $2000 note came into the bank, and in which the same
p. 533
was paid; although independent of such memoranda and entries the witness had no recollection of the facts, and even after having his memory refreshed by their examination, he could not testify to the facts independent of the entries and memoranda. To this evidence the defendants objected ; but the objection was overruled, and the defendants excepted.
The plaintiffs then produced a letter purporting to have been written by A. B. Johnson, president of the Ontario Branch Bank, at Utica, dated July 14, 1834, and directed to said .Taiman as cashier, and which stated that several notes were enclosed for collection and credit, and among others the note of N. C. Prentiss, and others, (due) Nov. 21-$2000. The witness, Taiman, testified to the hand-writing of Johnson—that the memorandum on the back of the letter, of its receipt, was in the-hand-writing of the witness— that it was a part of his business to take the letters from the post office, and to make a memorandum of the day when they were received upon the letters themselves, before making the entries in the books—that from the memorandum he was entirely confident that this letter was received by him upon the day noted, and in the usual course of business, though he said he had no recollection of having received the letter, nor of having seen it before it was produced to him on the trial. The judge allowed the letter to be read in evidence, and the defendants excepted.
The witness then went on and testified to several facts which appeared from entries made by him at the time, in the books of the bank, and among others, that the $2000 note was received by the plaintiffs for collection on account of the Ontario Branch Bank, on the day of the receipt of Johnson’s letter—that the note was paid by Schermerhorn as endorser, and the money passed to the credit of the Ontario Branch Bank; and on the same day a draft for the proceeds of the note was sent to the Ontario Branch Bank. So far as the witness knew, no note made by Prentiss and the defendants, or by the defendants alone, had ever been
p. 534
discounted by the plaintiffs, except the notes of $700, $749,46, and the one in suit. The witness said his uniform practice was, to make his entries at the time the transactions occurred, arid to make them truly according to the facts—that he had no doubt the entries were made in that manner, and were correct—that independent of these entries, he had no recollection of the matters of which he had spoken; nor could he, after examining the entries, say that his recollection was sufficiently refreshed to enable him to testify to the transaction without reference to the entries. The defendants objected to the testimony in relation to the entries. Overruled, and exception taken.
The plaintiffs called Mr. Mathews, the attorney for the defendants, who testified that he had examined the books of the bank, and that it did not appear from these books that any note of $2000 was ever discounted by the plaintiffs for Prentiss and the defendants. The defendants objected to this evidence; but the objection was overruled and the defendant excepted.
The jury found a verdict for the plaintiffs, and the defendants now move for a new trial on a bill of exceptions.
S. Mathews O. Hastings, for the defendants
A. Gardner, for the plaintiffs.

By the Court,

The defendants attempted to prove that the two thousand dollar note had been discounted by the plaintiffs. In answer to this evidence, the plaintiffs proposed to show, when, how and for what purpose the note came into the bank; and that they had no connection with it beyond that .of collecting and remitting the money. If the proof which they offered was admissible, their case was fully made out. The testimony of cashier Taiman, taken in connection with the letter of Johnson, the endorsement made upon it at the time it was received, and the entries then made by the witness in the plaintiffs’ book, showed, or, at the least, tended to show, that the note came into, the bank on a particular day through the post

p. 535
office, and in the usual course of business—that it was received for collection on account of the Ontario Branch Bank, and that the money was collected and remitted to that bank. This testimony went far to prove that Prentiss, the defendants’ witness, was mistaken in supposing the note was discounted by the plaintiffs. And in addition to this, it was proved that it did not appear by the plaintiffs’ books that they had ever discounted such a note.

But the question whether the plaintiffs were entitled to a verdict, does not arise upon this bill of exceptions. The only questions made by the bill are, whether the proofs offered by "the plaintiffs were in their own nature admissible, and whether they had a legal tendency to make out the plaintiffs’ case.

This brings us to the enquiry whether the original entries and memoranda were properly received in evidence. The defendants insist that they could only be used for the purpose of refreshing the recollection of the witness, and not as evidence to the jury. I may here remark, that the entries and memoranda were made in the usual course of business, and are verified in the most ample manner by the witness who made, and whose duty it was to make them. The proof could not well have been more satisfactory than it is. But the witness was unable to call to mind the original transaction; and the question is, whether memoranda and entries thus verified, should be allowed to speak for themselves. I think they should. Although it was not then absolutely necessary to pass upon the question, it was fully considered in Merrill v. The Ithaca and Owego R. R. Co., ( 16 Wend. 586 ;) and we came to the conclusion that evidence of this character was admissible. Lawrence v. Barker, ( 5 Wend. 301 ,) does not lay down a different rule. The memorandum in that case was not made in the usual course of business, but only for the convenience of the witness. But here the memoranda and entries were made in the usual course of business, and as a part of the proper employment of the witness. I do not see how it is possible to doubt that such evidence ought to be received. There are a multitude of transactions

p. 536
occurring every day in banks, the offices of insurance companies, merchants’ stores, and other places, which, after the lapse of a very brief period, cannot be proved in any other way. It is not to be supposed that officers and clerks in large trading and other business establishments, can call to mind all that has been done in the course of their employment; and when their original entries and memoranda have been duly authenticated, and there is nothing to excite suspicion, there can be no great danger in allowing them to be laid before the jury.

The objection to the letter of Johnson seems to have been made on the ground that the witness had no present recollection of having received it, but was obliged to depend upon, his endorsement on the letter, and his entries made the same day in the books of the bank. If that was the only ground of objection, the question has been already sufficiently considered. If the defendants intended to go further, and insist that the declarations of Johnson were not evidence in this action, they should have said so at the time. But if they had made the point on the trial, it would have been unavailing. The letter contained nothing beyond a statement that the note was sent for collection and credit. That statement, in connection with the other evidence, went to show for what purpose the note was sent by the one bank and received by the other. It constituted a part of the transaction, and as such was clearly admissible evidence. If Johnson had called in person and delivered the- note, saying he left it for collection, his declaration would have been admissible as a part of the res gestee ; and his written declaration accompanying the note stands on the same principle.

If the two thousand dollar note had been discounted by the plaintiffs, that fact would, in the ordinary course of business," have appeared upon the books of the bank. The fact that there was no such entry in the books was, I think, proper evidence, for the consideration of the jury.

New trial denied.[1]

(a) (a) See Brewster v. Doane and another, post, p. 537.

Cases cited