Warren v. Hiltscher

BURROUGHS. J.,

pro tem.

The plaintiff Hiram Warren is the administrator with the will annexed of the estate of James E. Dawson, deceased. The plaintiff Minnie L. Engle is the executrix of the last will and testament of Bertha Dawson, deceased. The plaintiffs, acting in their representative capacity as aforesaid, commenced this action to recover from the defendants certain commissions alleged to be due on a contract of employment made and executed between the defendants and James E. Dawson. The court rendered judgment in favor of the plaintiffs and the defendants appeal therefrom.

This appeal is based upon the claim that the admission in evidence of the book of account, called the time-book, was reversible error; that it should have been excluded; and that without it there was no evidence upon which the court could predicate its findings.

It is undisputed that the defendants entered into a written contract with said Dawson. By its terms the defendants employed Dawson to construct a certain building, and for such services he was to receive as compensation ten per cent of the cost of construction, the same to be paid upon completion of the building. Acting under said contract Dawson constructed the building at a cost of $50,372.80 and he thereby became entitled to a commission of $5,037.28. During the course of the construction of said building the defendants paid to Dawson $12,312.90, which sum, according to the time-book received in evidence, was accounted for by payments for labor and material used in said building. A balance of $2,128.25 was found to be due the plaintiffs. This sum, together with interest allowed by the court, made a total of $2,434.80, the amount for which judgment was rendered. Appellants, as heretofore stated, claim that the time-book was not properly proved so as to entitle it to admission in evidence. The rule governing the admission in evidence of books of account is clearly stated in

Chan Kiu Sing

v.

Gordon,

171 Cal. 28 [151 Pac. 657], where it is held that, “In order to lay the foundation for the admission of such evidence it must be shown that the books in question are books of account kept in the regular course of the business,

[320]