Wallace v. Oswald

KERRIGAN, J.

This is an action brought by the plaintiff against the defendant as executor of the last will and testament of Van Alstine Wallace, deceased, to recover the sum of $1,929.76 alleged to be due from the deceased upon an open, mutual, and current account.

"The complaint sets forth an itemized statement of the account, charging deceased with certain items of rents collected and received by him from properties of plaintiff during the period from 1911 to 1919, and crediting him with expenses incurred by him for repairs upon plaintiff’s said properties, together with taxes and insurance premiums and various remittances made by him to plaintiff during said period. The answer of the defendant consists in general of a denial upon information and belief of the allega

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tions of the complaint, and sets forth a counterclaim upon a mutual, open, and current account between said decedent and plaintiff for services of decedent in caring for the properties, and for commissions on collection of rents during the period set forth in the complaint. The intervener, Evelyn Jane Lee, filed a complaint in intervention, setting forth substantially the same matters of defense against plaintiff’s claim as are contained in said answer. Upon the trial of the cause plaintiff offered in evidence certain entries made by the deceased in account-books kept by him in his own handwriting, showing items of rents received by him from properties of the plaintiff. None of these entries were made at or near the time of the transaction, many of them having been made five or six months, and some as late as two years, after the transactions which they purported to record, and upon objection by the defendant the court excluded them upon this ground. The respondents justify this ruling- of the trial court by citing the provisions of subdivision 1 of section 1946 of the Code of Civil Procedure. The section in its entirety reads as follows:

“The entries and other writings of a decedent, made at or near the time of the transaction, and in a position to know the facts stated therein, may be read as

prima facie

evidence of the.facts stated therein, in the following cases: