Patrick v. Tetzlaff

JAMES, J.

Appeal by plaintiff from a judgment entered in defendant’s favor.

This action, as formulated by the complaint, was one of claim and delivery, wherein it was alleged that the defendant “wrongfully” took from the possession of the plaintiff a certain automobile and continued to retain possession of the same after demand made. The usual judgment in the alternative was asked for. The defendant filed what he designated as a cross-complaint, wherein it was set up that the automobile in question was delivered to him for the purpose of having many repairs made, and that he was entitled to payment of his repair bill, which amounted to the sum of $454, before relinquishing possession of the machine to the plaintiff. The trial judge determined the facts to be as alleged in the cross-complaint and, it evidently being made to appear that plaintiff had taken possession of the machine as a right preliminary in his action of claim and delivery, it was ordered that the defendant recover possession and that in ease delivery could not be had, that “defendant and cross-complainant recover from plaintiff and cross-defendant the sum of $454.” As to whether the filing of such a cross-complaint is appropriate to an action of replevin may be doubted, but as that question is not at all involved in the argument upon this appeal, we leave it undecided.

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The only matter urged as ground for reversal is that the trial judge erred in admitting in evidence certain shop cards showing the time devoted by several of the employees of the defendant to the work of repairing plaintiff’s automobile. ' There were materials furnished, but the correctness of those items was admitted by the plaintiff. The bookkeeper of the defendant testified as to the system employed

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in the shop of defendant by which the time charge against any particular job was made up. This system consisted first in original memoranda made by the individual workmen wherein the items of the hours employed were set down over the signatures of the workmen, and these cards were turned in to the bookkeeper, who made up his total charges by aggregating figures shown on all cards. The bookkeeper identified the several signatures attached to the cards as being those of the workmen employed in making the repairs in question. The bookkeeper further testified that under the system employed, each job as it was entered upon was given a certain number and the cards which were turned in identified the work under the number selected. No witness testified in words that the charges were correct. It was agreed, however, that the total number of hours shown on the cards was the number charged; but the plaintiff objected to the evidence on the ground that no proper foundation was laid therefor and that the same was incompetent and hearsay. It seems to be well established that the books of a tradesman or shopkeeper, when it is shown that they have been regularly kept following the usual course of business of the person producing them, are admissible in evidence and are