Ryan v. Pacific Axle Co.

COOPER, C. This action was brought to recover of defendant corporation the sum of $1,819.31 for alleged services rendered by plaintiff’s assignor, McCrosson, as secretary of defendant, at a salary of $75 per month, for the two years prior to the commencement of the action, October 19, 1895. The case was tried with a jury, and a verdict returned in favor of plaintiff for the sum of $1,050. Defendant made a motion for a new trial, which was denied, and this appeal is from the judgment and order.

The principal defense relied upon was that a special agreement had been made in May, 1892, between McCrosson, the secretary of defendant, Noble, the president, and Hendrie, a director, and the superintendent, by which they each and all agreed to serve thereafter without salary, and to waive and forego any future salary. To this defense the defendant directed most of its evidence, and presented testimony which would have justified the jury in finding the agreement to have been so made. The defendant called one Spillane, who was its bookkeeper at the times mentioned in his evidence. He gave important testimony tending to support the contention of defendant as to the agreement. He had charge of defendant’s books, and was cross-examined as to various items in the ledger. He was during cross-examination shown a paper by plaintiff’s counsel which he testified was prepared in response to a request from McCrosson, who was admitted to be interested in the ease, and was taken partly from the books of defendant; but in the statement were certain entries on the debit side of the ledger which were made at the time of preparing the statement, at the suggestion or dictation of McCrosson. These entries were: “Salary from April 31st, 1892, to December 31st, 1892, 8 months, at $75, $600. Salary 12 months, at $75, year 1893, $900. 1894, sal[904]ary 11 months, at $75, $8-25.” Counsel for defendant objected to the paper being received in evidence upon the ground that it is a self-serving declaration. The court overruled the objection, and the paper was read in evidence. This was clearly prejudicial error. It was, as to the items herein quoted, purely an ex parte statement, made by MeCrosson, or by the witness Spillane at the request of MeCrosson. It was not a copy of the book of entries, and was not even made under the sanction of an oath. The question before the jury was as to whether or not the salary continued after May, 1892. The document, being made by defendant’s bookkeeper, might have been regarded by the jury as an admission or entry of a solemn nature tending to prove the fact that the corporation was to pay MeCrosson’s salary during the time in controversy. It cannot be said that the jury disregarded it. The judge, in overruling the objection, certainly treated it as material and competent. After it had received judicial sanction, and was admitted in evidence, it is natural to presume that the jury treated it as of some importance. If the judge thought it important and competent, it would be absurd to assume that the jury, notwithstanding this, looked at it from the critical standpoint of a lawyer. The defendant had the right to insist upon the case being tried upon legal and competent evidence. It may be that this piece of evidence was the straw that tipped the .scales in favor of plaintiff. While this court always hesitates to reverse a case on account of an error in the admission of evidence, yet it will do so where it is not clear that the error was harmless.