
    Hunt, Receiver, v. Krebs.
    (Decided February 5, 1934.)
    
      Messrs. Taft, Stettinms S Hollister, for plaintiff in error.
    
      Mr. Ralph E. Cla/rlt, for defendant in error.
   Hamilton, P. J.

Graham P. Hunt, as Receiver for Roberts & Hall, brokers, brought an action in the Court of Common Pleas against the defendant A. L. Krebs. The petition recites for a cause of action against defendant that there is due the plaintiff from the defendant on an account the sum of $2,797.69, which he claims with interest from December 30, 1929. A copy of the account, marked Exhibit “A”, is attached to the petition, and the plaintiff prays judgment for that amount.

The attached copy of the account contains but two items, the first item is for 25 shares of Cincinnati Ball Crank Company preferred stock, delivered and paid for. This was a cash transaction. The only other item in the account was an item in which Krebs was charged with the purchase of 75 shares of the preferred stock of the Cincinnati Ball Crank Company, for which he was charged, debit account, $2,718.75. The balance of the account consists entirely of interest charges on this 75 share stock purchase.

The answer, in addition to a general denial, recites that the only purchase the defendant ever made of Roberts & Hall was 25 shares of Cincinnati Ball Crank Company stock, which he paid for at the time.

The answer further states that if Roberts & Hall purchased the 75 shares and charged the costs thereof to the defendant’s account, the purchase was without authority or sanction' on the part of the defendant, and, further, that he was notified by the receiver that his account would be credited with the value of the 75 shares of Cincinnati Ball Crank Company preferred stock as of December 30, 1929, at $27 a share, or a total of $2,025, leaving a balance due the receiver of $772.69; but defendant denies that he owes this amount or any other amount.

At the trial of the case, at the close of the plaintiff’s evidence, the defendant moved the court to instruct the jury to return a verdict in favor of the defendant, which motion the court granted, and a verdict was returned for the defendant, and judgment entered on the verdict.

The instruction of the court to the jury to return a verdict in favor of the defendant and the judgment entered thereon are the errors complained of. Plaintiff claims to have been prejudiced, as there was some evidence tending to establish his claim on the account.

The plaintiff produced at the trial a leaf from a loose leaf ledger, which purports to be the original of the copy attached to the petition. The trial court admitted this page from the ledger apparently on the theory that it was a book account, and that the suit was on an account in the short form, and that the page was admissible under the shop book rule. If this page was admissible, the judgment would have to be reversed under the shop book rule. It would show a balance due from Krebs, on an account. It may be said here that this loose leaf and a certain ticket indicating an order are the only evidence tending to support the claim. There was no witness called to testify who had any independent knowledge of the transaction., There is no proof that the 75 shares were ever tendered to Krebs, other than defendant’s statement upon the witness stand that some days after he was in and bought the 25 shares some one of the brokers called him and said they had 75 shares of Cincinnati Ball Crank Company preferred stock, and he told them he did not want them.

While the petition declares on an account in the short form, the action really seems to be one for the balance due on a contract; but were that the case the plaintiff below would be in no better position. This proposition would only be a circumstance bearing on the admissibility of the loose leaved ledger to prove a debt. It is a well-settled rule that books of account are not competent evidence to contradict or prove a separate contract. The use of books of account as evidence arises from the necessity of the case, but where the fact is or could be proved by a formal writing, or is susceptible of proof by other evidence, the books shall not be resorted to. This is the rule declared in many of the states.

In Hazer, Admr., v. Streich, 92 Wis., 505, 66 N. W., 720, it is stated, in the first paragraph of the syllabus:

The fact that a memorandum of a contract of sale was written in the vendee’s ledger by his bookkeeper, at his direction and in the presence of both parties, does not render it admissible to prove the terms of the contract.”

While it is true that in the case under consideration it is claimed that the firm of Roberts So Hall were brokers, the account is credited to Roberts & Hall and charged to Krebs, and the rule above stated would apply. The memorandum of sale was written in Roberts & Hall’s ledger, and they present themselves as the creditor.

In the case of Baxter v. Leith, reported in 28 Ohio St., 84, in passing on the admissibility of a book account, the court stated:

“Baxter, in his answer and in his testimony, claims the goods were delivered on a special contract with Back. Hence, the matter in issue could not be the subject of book account by Baxter, and the book was not admissible to prove the alleged contract or its execution. ’ ’

The entry disclosed by the loose leaf ledger shows that if there was any liability against Krebs, it would be under the contract to purchase the 75 shares. It is claimed that Krebs admitted he wanted 100 shares when he went into the broker’s office. However that may be, when he was there and stated his wants there were but 25 shares delivered, and these were paid for upon delivery. Therefore, the only subject of the account was the special contract for the purchase of 75 shares.

The rule announced in 17 Ohio Jurisprudence, 678, Section 561, would render a loose leaf ledger incompetent to prove the contract; in this case, the claimed account.

It is claimed that the memorandum slip was a buy order, indicating the purchase of 100 shares of stock. The memorandum slip was in lead pencil and is in a mutilated condition, in so far as the writing is concerned, there being additions and erasures. This memorandum slip was offered by the plaintiff through one Steffens, cashier of Roberts & Hall Company. The memorandum slip was not signed by Krebs, and was a self-serving written memorandum, which the witness testified was in Mr. Roberts’ handwriting. The witness testified that such slips were used in the general course of business, but that he had no personal knowledge of the transaction. When asked regarding the rubber stamp date, a date stamped across the slip, and being a second date on the slip, he stated he did not know what the purpose of that was.

The suit is on a book account. The siip indicates an order for 100 shares of Cincinnati Ball Crank Company stock. This memorandum was not the original paper from which the entry was made upon the book account. It is not in accordance therewith.

The loose leaf ledger and the memorandum slip were admitted over objection of defendant.

In Ohio it has been held that large sums of money, as for instance $450, are not the proper subject-matter of a book charge. Page v. Zehring, 6 W. L. B., 299, 8 Dec. Rep., 211; Watts v. Shewell, 31 Ohio St., 331; Kennedy v. Dodge, Admr., 19 C. C., 425, 10 C. D., 360.

Moreover, the clerk or party making the entry in the so-called ledger was not produced as a witness. Plaintiff sought to show that the entries were made by a clerk, from a knowledge of the clerk’s handwriting. It was not shown that the party making the original entry was not available as a witness in the case. This is an added reason why the ledger was not admissible.

Our conclusion is that the loose leaf from the ledger is inadmissible as evidence, as was the memorandum slip. With these items of evidence eliminated, there was no proof tending to establish the plaintiff’s right to recover under the petition.

No prejudicial error therefore resulted in the sustaining of the motion to direct a verdict, or in the judgment entered.

Judgment affirmed.

Cushing and Ross, JJ., concur.  