
    Ferguson v. Siegel.
    (Decided February 13, 1928.)
    
      Mr. M. B. Price and Mr. Fielder Banders, for plaintiff in error.
    
      Mr. P. Sampliner, for defendant in error.
   Sullivan, P. J.

This cause is here on error, and the parties stood in the inverse order below, the plaintiff Siegel suing upon an express verbal contract for the value of materials and labor plus 10 per cent., he being a carpenter contractor and engaged in remodeling three houses on East Eighty-eighth street at the instance of the defendant Maude A. Ferguson, who, in her pleading, alleged that as to the work on the house at 2037 East Eighty-eighth street the agreement was based upon a written contract, which, as the work progressed, was modified in writing, and the result was that the contract price was increased to the amount of some $700. Thus it became a question of fact to determine which view was the correct one, basing the analysis of the case upon whether there was a verbal contract or a written contract, as variously claimed by the contending parties.

Under such a state of the pleadings, the burden of proof was upon the plaintiff, Siegel, to establish, under the rules of law, that the work was based upon a verbal contract, and the issues made it competent for either side to offer evidence as to the reasonableness of the terms of the contract. This is an exception to the general rule, and, under the authorities, is admitted for the purpose of determining which of two contracts was the basis of the work. It is charged that the court below committed prejudicial error, in that, under objection and exception, the bills for lumber and hardware and time sheets for labor were introduced as substantive evidence to prove the plaintiff’s claim as to the total amount that was due him from the defendant, Ferguson. These documents it is claimed by plaintiff were used by plaintiff while on the witness stand for the purpose only of refreshing his recollection, but upon this point the defendant argues that not even for the purpose of recollection were these instruments of writing employed. It is admitted in oral argument, by plaintiff’s counsel, that the sole purpose of their use was to aid the recollection of the party plaintiff, and this admission, as well as the record in the case, is determinative of the question of error, because the parties to this litigation were not in privity with respect to these instruments in writing, whose sources were the lumber firms or the laborers who performed the labor; and hence the evidence was of an extraneous nature and not binding upon the defendant below under the rules of evidence, inasmuch as she was no party to the transaction, but the documents contained matters foreign to the issues as raised by the pleadings, and the evidence in character was hearsay, and being of a documentary nature, and in the form of exhibits that went to the jury, it appears quite clear to us that their effect was prejudicial, and that the learned trial court in permitting their introduction was in error under the rules relating to the introduction of evidence as to book accounts. Even between the parties such evidence must be the book accounts themselves, and they must have been made up by the party offering them, or some one duly authorized in the premises, and they must be accounts of original entry, so careful is the law of evidence in regard to the introduction of such documents. Mere self-serving declarations, even between the parties, are not competent, because they do not bear the stamp of the requirement above noted. Thus it is our unanimous opinion that in this respect there was prejudicial error.

Another assignment of error is that the defendant was denied the right to offer testimony as to the reasonable value of the services for which claim was made. This class of evidence was competent on the ground, above stated, that where there is an issue as to which is the proper contract, evidence as to what is reasonable or unreasonable becomes competent as shedding light upon the real issue as to which is the contract. In this status of the case, the defendant below, in our judgment, had the right to offer evidence of this character, and under the record the denial of this right, we think, is prejudicial error.

Therefore, from an examination of the record, there was evidence offered of an incompetent nature, and evidence refused of a competent nature, and in each case we think such action was prejudicial to the plaintiff in error. Excluding the evidence which we think was competent, and keeping in mind the refusal to incorporate in the record, and the evidence of reasonable value, we come to the question of the weight of the evidence, under the state of' the record produced by the rulings of the court in the instances' noted. It is true that a reviewing court has no right, under the authorities, to reverse a judgment of the court below on the ground that it is clearly and manifestly against the weight of the evidence, unless it is a matter of law, and that the judgment of a reviewing court should have no influence if there is credible evidence in the record to support the judgment.

In order to reverse on the weight of the evidence, it must appear from the record that there was some misapprehension of the law or improper refusal on the part of the tribunal below, and in this case we think that the situation in the record as to the admission and refusal of evidence, herein noted, leaves the case where we can justly say that under the law the judgment is clearly and manifestly against the weight of the evidence. We must also bear in mind that one of the rules of evidence is that, where an original contract is changed,'it needs evidence of a clear and convincing nature to prove the change.

Holding these views, the judgment of the lower court is hereby reversed, and, inasmuch as the ultimate facts are apparently conceded in the record, under the authority of the Supreme Court of Ohio, we render final judgment for the plaintiff in error.

Judgment reversed and judgment for plaintiff in error.

Vickery and Levine, JJ., concur.  