Brown v. Gow

JENNINGS, J.

This action was originally instituted by plaintiff against J. R. Brightman to recover a balance of $3,060.50 alleged to be due for services performed by plaintiff at Brightman’s request. During the pendency of the action and prior to trial, J. R. Brightman died and the executrix of his will was substituted as the defendant in his place. The trial resulted in the rendition of a judgment in defendant’s favor from which judgment plaintiff has prosecuted this appeal.

Appellant’s supplemental complaint filed subsequent to Brightman’s death contains four counts. In the first count the sum demanded is alleged to be due on an open book account for services rendered. The second count is based upon a mutual open and current account for services rendered. The third count is upon

quantum meruit

for services rendered. The fourth count is based upon an express contract for services performed. In support of the allegations contained in the first and second counts of the supplemental complaint appellant offered in evidence a copy of a book of account which she testified she kept and in which

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she stated she had made entries showing the dates on which she had performed services for the deceased and the number of hours she had worked on each date. Objection to the admission of this evidence was interposed by respondent and was sustained. It is contended that the trial court erred in sustaining the objection and in declining to receive the evidence proffered. As above noted, the evidence consisted, not of the original book of account but of a copy which appellant testified she made prior to Brightman’s death. Sections 1855 and 1937 of the Code of Civil Procedure permit evidence of the contents of a writing to be given when the original has been lost or destroyed. Preliminary proof of the loss or destruction of the original is required and it is for the trial court to determine whether the evidence thus offered is or is not sufficient. The trial court’s determination in this regard is conclusive unless it clearly appears that the court abused the discretion committed to it. (16 Cal. Jur., sec. 11, p. 701.) The record fails to show an abuse of discretion by the court. The evidence tending to show that the original document was lost was far from satisfactory and the court was amply justified in its refusal to admit the proffered copy. Furthermore, no witness other than appellant testified as to the correctness of the entries contained in the original book. Appellant was not herself competent to testify that the entries were correct.