Opinion
No. 33919.
January 22, 1940.
1. APPEAL AND ERROR.
In employee's action on note executed by corporate employer, wherein employee pleaded three-year statute of limitations in bar of employer's counterclaim for recovery of difference between amount of bonus issued to employee and the note, striking of some of averments of employer's replication alleging that employee fraudulently concealed from employer the existence of note as outstanding obligation of employer was not reversible error, where remaining averments were sufficient to present issue of alleged fraudulent concealment of note (Code 1930, sec. 2299).
2. EVIDENCE.
In action on corporate note, testimony of corporate auditors as to correctness of audits showing note as liability in favor of plaintiff was not a condition precedent to admission of audits on issue whether corporate officers were advised of existence of note which was alleged to have been fraudulently concealed from corporation.
3. EVIDENCE.
The exclusion of testimony of witness on former trial, offered to contradict plaintiff on subsequent trial, was not error, where absence of witness at subsequent trial was not accounted for.
4. CORPORATIONS.
Evidence warranted employee's recovery on note executed by corporation, and denial of recovery on corporation's counterclaim for difference between note and bonus issued to employee on ground that employee did not agree to refund any part of bonus paid to her and to cancel the note.
APPEAL from the circuit court of Pearl River county; HON. GEORGE W. CURRIE, Special Judge.
Hathorn Williams, of Poplarville, for appellant.
The trial court erred in admitting the audit of Numa J. Derbes and the audit of Dennis A. Barry, over the objection of appellant, without proper identification.
10 R.C.L. 1174, par. 373; 22 C.J. 874, par. 1054; 22 C.J. 900, par. 1096; Smith v. Natchez Steamboat Co., 1 How. (Miss.) 479; Moore v. Joyce, 23 Miss. 584; Bookout v. Shannon, 59 Miss. 378; Chicago St. L. N.O.R.R. Co. v. Provine, 61 Miss. 288; I.C.R.R. Co. v. Butterfield Lumber Co., 49 So. 179, 95 Miss. 359; Mo. Pac. Transportation Co. v. Beard, 174 So. 156, 179 Miss. 794.
The trial court erred in refusing to permit appellant to cross-examine appellee concerning the audit of Dennis A. Barry and his testimony with reference to said audit on the former trial of the case.
The trial court erred in admitting, over the objection of appellant, a part only of the document in another cause (No. 2464 of the court) and in refusing to permit appellant to introduce all of said document.
10 R.C.L. 1088, par. 288; 22 C.J. 972, par. 1217; Dugan v. Brown, 44 Miss. 235.
The trial court erred in striking paragraphs numbered 3, 4, 5, and 6 of appellant's replication to appellee's plea of limitations; and in refusing to permit appellee to be cross-examined by appellant concerning her ill will toward G.H. Williams and Mrs. Nellie Koch, co-owners with appellee of all its capital stock.
Code of 1930, Secs. 2292 and 2312.
The trial court erred in peremptorily instructing the jury they could not find for appellant under its plea of set-off and counterclaim for the excess of the bonus over the note sued on.
The verdict and judgment is contrary to the overwhelming weight of the evidence, and the court erred in overruling the motion of appellant for a new trial.
Teche Lines v. Beard, 179 So. 147.
Parker Morse, of Poplarville, Hall Hall, of Columbia, and Grayson B. Keaton, of Picayune, for appellee.
The only purpose in introducing these audits was to refuse appellant's unwarranted and unjustified charge that the appellee had fraudulently concealed the existence of the note from the company and from its president and these audits showed that the note was not concealed.
The appellee testified that the Derbes audit was one of the records of the company, so accepted by its president and that the Barry audit was likewise accepted by R.J. Williams and used as a record of the company, and both of these audits were identified as records of the company by this witness who was secretary of the company. Counsel for appellant contended that the court erred in admitting these audits, and at the time of making their objections in the trial court, the sole ground for objection was that nobody could identify the audit except the person who made it and that appellant was entitled to have the auditor present for cross-examination but on appeal, the appellant has abandoned that ground of objection, the only objection raised at the trial, and has now planted its hope for reversal upon the ground that the audits have not been identified as the books of the corporation.
22 C.J. 900, Par. 1096; Smith v. Natchez Steamboat Co., 1 How. 479.
In the case at bar the secretary of the corporation testified that the two audits in question were made by certified public accountants at the request of the president of the corporation, and that after completion they were accepted by the president as records of the company and had continued to be records of the company and in the possession of the company from their respective dates. What more indeed is necessary in order to identify these audits as records of the company?
10 R.C.L. 1171; 22 C.J. 874.
Corpus Juris lays down the following rule regarding the admission of evidence of a witness given upon a former trial: "When, as frequently happens, it is impossible to produce on a trial evidence which was introduced at a previous trial, the former evidence is received from the necessity of the case, provided, of course, that it is relevant and material on the latter trial, and provided further that certain conditions hereafter discussed are found to exist."
22 C.J. 427, par. 510.
On the pages thereafter following are discussed the conditions under which evidence at a former trial may be received, among which is this statement: "It is universally agreed that the party seeking to use the former testimony must show that it is impossible for him to procure the attendance and testimony of the witness, and numerous authorities go even further and require a showing that it has been made to secure the deposition of the witness for use on the trial."
22 C.J. 431, par. 517.
In the case at bar the appellant made no showing that it had undertaken to procure the presence of Barry or to take his deposition.
Gastrell v. Phillips, 1 So. 729, 64 Miss. 473.
There is abundant authority supporting the proposition that, particularly in a case where the only purpose of the instrument is to discredit and contradict a witness, it is not improper to admit only a part of the document, as to which see 22 C.J., page 411, paragraph 495.
The action of the court in striking the improper paragraphs from the replication did not take the heart from this replication, but left in the replication every legal right which had been originally pleaded therein.
There is no question that the appellee was entitled to a peremptory instruction insofar as the counterclaim sought to recover against her for the amount of the bonus over and above the amount of the note. The claim was clearly barred by the statute of limitations, and to avoid the statute the appellant pleaded that the appellee had fraudulently concealed from the corporation and from its president the fact that she still held the $2700 note. The testimony of the bookkeeper demonstrated conclusively that the note, from the very day it was given, was carried on the books as a liability of the company, and that the president of the company was fully aware thereof. The bookkeeper testified that he discussed this liability of the company with the president thereof and also discussed the audits made by Derbes and Barry, both of which showed this liability of the company. It was not concealed, and there was no effort to conceal it, and it was shown at all times on the books of the company as being an outstanding and unpaid indebtedness of the company. The record is conclusive as to this, and not one single word of evidence was offered by the appellant which even remotely tended to show any concealment of the indebtedness by the appellee. The appellant's effort to avoid the statute of limitations on its alleged counterclaim did not amount to even a feeble gesture and was apparently abandoned upon the trial, since no evidence whatever was offered to support the same.
It is respectfully submitted that the verdict in this case is abundantly supported by competent evidence, that no error was committed on the trial of the case, and that the judgment of the trial court should, therefore, be affirmed.
Argued orally by E.B. Williams, for appellant, and by Lee D. Hall, for appellee.
In conformity with the views expressed in the opinion of the Court on the former appeal of this case, which is reported in 166 Miss. 803, 146 So. 143, the appellant, Williams Yellow Pine Company, amended its pleadings on the second trial so as to allege an agreement whereby the appellee, as an employee of said corporation, was paid a bonus of $5,000 on December 1, 1925, with the understanding that the same was to be refunded by a cancellation and surrender of the $2,700 note herein sued on, and which note was executed in her favor by the appellant for a loan on July 16, 1925, and by also paying back to the appellant the difference between the amount of the note and the said bonus; and the appellant also sought to recover judgment over against appellee for this excess, as on the former trial.
Responding to this plea, the appellee denied the alleged agreement and plead the three year statute of limitations, section 2299 of the Code of 1930, in bar of the asserted right of the appellant to recover a judgment for the excess so claimed. To this plea of the statute of limitations, the appellant filed a replication alleging in substance that appellee had frauduently concealed from the appellant corporation the fact that she held its said note for $2,700 as an outstanding obligation in her favor; that she had been able to conceal the existence of this claim of indebtedness from December 1, 1925, until the date of the filing of this suit, by reason of a confidential relationship which she had sustained toward R.J. Williams, the president of the corporation, and whom she married on March 5, 1929. The replication contains several averments of facts and circumstances to support the principal averment of fraudulent concealment of the claim, during the lifetime of the said R.J. Williams, who died on February 27, 1930, shortly prior to the filing of this suit, and some of which averments were stricken out by the court below on motion of the appellee on the theory that the proof in support thereof would only tend to prejudice the rights of the appellee before the jury, and would not aid the jurors in reaching a proper decision of the issues involved. Moreover, the averments of the replication which were not stricken are sufficient in our opinion to present the issue of the alleged fraudulent concealment of the claim; and hence we think that no reversible error was committed in that behalf.
On this issue the proof disclosed that audits of the books of the corporation, made at the instance of its president, covering each of the two years immediately following the execution of the note, carried an item showing the note for $2,700, bearing date of July 16, 1925, as a liability in favor of the appellee; that the bookkeeper discussed these audits on different occasions with the president of the corporation in connection with its then outstanding liabilities, including the entry therein of the note in question; and that thereafter these audits were treated as part of the records of the corporation. They were objected to by the appellant on the ground that the auditors who made them were not introduced to testify as to their correctness. However, we are of the opinion that testimony as to their correctness was not required as a condition precedent to their admissibility in evidence on the issue as to whether or not the officers of the corporation were advised of this claim, contrary to its plea of fraudulent concealment.
It is urged, however, that one of the audits listed the note of $2,700 bearing date of July 16, 1925, as being a note carrying interest at seven per cent per annum, whereas the note sued on bears eight per cent per annum. This discrepancy was explained by the appellee on the ground that the auditor did not examine the note in her possession and ascertain its interest rate before making the incorrect entry on the audit from the books. The appellant thereupon sought to contradict her in that regard by offering the testimony of the auditor taken on the former trial wherein he had stated that he did call for and examine the note when he made the audit. The court ruled that the testimony of the auditor given on the former trial was not competent for that purpose. No reason was shown as to why the auditor was not introduced by the appellant on the second trial as a witness, if his testimony was desired. Moreover, the proof discloses without dispute that the appellee held only one note of the appellant for that amount and of that date. Under the circumstances, we do not think that it was error to exclude the testimony of a witness given on the former trial, when offered for the purpose of contradicting the appellee on the subsequent trial without the absence of such witness being first accounted for.
The question was clearly presented to the jury under conflicting evidence and proper instructions as to whether or not there had been an agreement whereby the appellee was to refund any part of the bonus paid to her and cancel the note sued on. In that connection the appellant also made the contention that a $5,000 bonus was likewise paid to each of two other employees of the corporation under the same alleged agreement that the same should be refunded, and we are of the opinion that the jury was warranted in finding from the evidence that these bonuses were not in fact refunded to the corporation, but that the two other employees mentioned actually received the full benefit thereof as a credit on their respective indebtednesses owing to R.J. Williams individually.
After a careful consideration of the numerous errors assigned we have reached the conclusion that the evidence is sufficient to support the verdict, and that no reversible error was committed on the trial. The judgment is therefore affirmed.
Affirmed.