Kains v. First National Bank

McCOMB, J.

From a judgment in favor of plaintiff after trial before the court without a jury in an action to recover a sum of money alleged to be due plaintiff’s assignor from the estate of defendant’s decedent, defendant appeals.

These are the material facts:

[449]

Oliver O. Clark, plaintiff’s assignor, had acted as attorney for Anna Powell Crookshank for a long period of time prior to her death. After her death, which occurred September 10, 1936, he filed with defendant, the administrator of her c-state, a verified claim in the amount of $22,350, which claim was rejected and the present suit instituted thereon. The complaint in six counts alleged among other causes of action, one, upon a book account for the sum of $22,350 and another for the reasonable value of services rendered to deceased subsequent to December 26, 1935, in the value of $10,000. The trial court gave judgment for $12,350 in favor of plaintiff on the count alleging the book account and for $7,500 on the count for professional services rendered subsequent to December 26, 1935.

Defendant relies for reversal of the judgment on these propositions:

First: The trial court committed prejudicial error in admitting in evidence, in support of the count of the complaint alleging a book account, the account books of plaintiff’s assignor, for the reason that a proper foundation for their admission was not laid by competent testimony.

Second: There is no substantial evidence to sustain the trial court’s finding as to the reasonable value of the services rendered by plaintiff’s assignor to decedent subsequent to December 26, 1935.

The first proposition is untenable. The law is established that there must be preliminary proof of the following elements in order to lay the foundation for the admission of account books:

(1) The books in question are books of account.

(2) They were kept in the regular course of business.

(3) The business is of a character in which it is proper or customary to keep such books.

(4) The entries in such books are either original entries or the first permanent entries of the transactions.