DECIDED NOVEMBER 3, 1954.
Suit on open account. Before Judge Smith. Atkinson Superior Court. June 19, 1954.
Elsie H. Griner, Robert M. Sumner, for plaintiff in error.
H. S. Jackson, contra.
1. The general grounds of the motion for a new trial are without merit. The evidence did not demand a verdict for the defendant, but authorized the verdict for the plaintiff.
2. The only ground of the amended motion for a new trial complains of the admission in evidence of certain documents over the objection of the defendant that they had not been identified by the testimony of a former witness, but this ground does not reveal whether the authenticity of these documents was supplied by other competent evidence. The ground is obviously too incomplete to present any question for review by this court.
( a) However, the documents objected to were admissible under the provisions of Code (Ann. Supp.) § 38-711 (Ga. L. 1952, p. 177).
DECIDED NOVEMBER 3, 1954.
Berrien Products Company, a corporation, filed suit on an open account against Samuel J. Guthrie in the Superior Court of Atkinson County. Guthrie filed a plea of general denial. The case proceeded to trial, and the plaintiff introduced the following evidence: George Jackson Moore testified for the plaintiff: "I am the bookkeeper for Berrien Products Company, have been working there as bookkeeper since 1947; the signature on this sheet of paper (witness identifying a yellow sheet of paper which was exhibited to him) is Samuel J. Guthrie's; the signature on this sheet of paper (identifying another yellow sheet of paper which was exhibited to witness) is Samuel J. Guthrie's; this is Samuel J. Guthrie's signature on this sheet of paper (identifying yellow sheet of paper exhibited to him); he got the fertilizer listed on the sheets." On cross-examination, the witness testified: "The yellow sheets just exhibited to me were taken from a ledger book; I did not make any of the entries on any of the sheets, I do not know who made them; I have never seen Samuel J. Guthrie sign his name; I do not know his signature; I have never seen Samuel J. Guthrie that I know of; I did not deliver the fertilizer to him; I did not see him get any fertilizer delivered to him; I do not know whether any fertilizer was ever delivered to him or not; I wouldn't swear that is his signature on the sheets; I am the bookkeeper but I did not do any of the writing on either of these sheets of paper; I was bookkeeper in charge of all the books on the dates shown on the sheets of paper; I do not know why they waited until May, 1953, to enter suit against Samuel J. Guthrie; I would not swear that he owes the amounts."
The following documents were admitted in evidence for the plaintiff: (a) yellow sheet of paper, with No. F-6088 in righthand corner, dated 11-27-50; (b) yellow sheet of paper with No. 6429 in right-hand corner, dated 12-18-50; (c) yellow sheet of paper, with No. F-7025 in right-hand corner, dated 3-1-51; and (d) yellow sheet of paper with No. F-7026 in right-hand corner, dated 3-1-51.
The only evidence offered by the defendant was his own testimony. On direct examination he testified as follows: "I do not owe Berrien Products Company anything; I paid them up in the fall of 1949 and have never bought anything else from them; in 1950 and 1951 I bought my fertilizer from Ocilla Fertilizer Company at Ocilla, Georgia, the dates they have got on these sheets are not correct, I did not get any of the fertilizer listed on the sheets; that looks like my signature, but the dates are not correct; and I did not get the fertilizer; I never knew they claimed I owed them a penny until the day before they filed the suit against me on May 18, 1953; Mr. M. L. Jackson, attorney, came to my farm on that day and told me he had a claim against me for the Berrien Products Company. I told him that I had paid them all I owed them and did not owe them a dime; the next day the sheriff served a copy of the suit on me." On cross-examination he testified: "I don't owe them anything, I paid them up in the fall of 1949, and never traded with them any more; I looked for my paid checks and paid bills but someone had either misplaced them or destroyed them; I have to keep a housekeeper to tend to my little granddaughter who I am raising, and it had been so long ago that I had paid the bills, I guess in cleaning up she just destroyed my checks, lots of my other checks had been destroyed too. I didn't get the fertilizer from them shown on the sheets nor on the dates shown on them. That is my signature on those sheets of paper, or invoices."
The jury returned a verdict in favor of the plaintiff; the defendant excepted and brought the case here for review.
The only ground of the defendant's amended motion for a new trial complains of the admission in evidence of the invoices referred to in the foregoing statement of facts. The objection urged to these invoices was that they were not identified by the plaintiff's witness, George Jackson Moore. This does not really constitute a good objection to the documents' admission, for the reason that it did not raise the question as to whether their genuineness had been established by other evidence. That a particular witness does not testify to a fact, the proof of which is necessary as the foundation for the admission of other evidence, would furnish no ground for objection to the species of evidence requiring such foundation, since other testimony of other witnesses might have supplied it.
But, had the objection been complete and sufficient to raise the question as to the admissibility of the invoices, they would have been admissible in evidence under the provisions of Code (Ann. Supp., 1954) § 38-711. That section reads: "Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event shall be admissible in evidence in proof of said act, transaction, occurrence or event, if the trial judge shall find that it was made in the regular course of any business, and that it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter. All other circumstances of the making of such writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but they shall not affect its admissibility. The term `business' shall include every kind of business, profession, occupation, calling or operation of institutions, whether carried on for profit or not. This section shall be liberally interpreted and applied."
There was evidence, though very meager, from which the court could have determined that the entries were made in the regular course of business. In this connection, it is noted that these invoices were found in a ledger book which the witness kept for the plaintiff, and the defendant admitted signing the papers, though he further swore that the dates on the invoices were not correct.
Prior to the enactment of the Code section quoted (Ga. L. 1952, p. 177), there could be no question that the testimony of a witness who did not make entries and did not know them to be correct would not furnish sufficient foundation for the introduction of the entries in evidence. This section certainly opens a broad departure from the hitherto fixed rules of evidence relative to the introduction of books and papers.
The acknowledgment appearing on each of the invoices above the signature of the defendant was some evidence that he admitted receiving the merchandise described in the invoice on the date of the same. The defendant did not deny that he signed these papers, dated as they were when they were introduced in evidence. He did not contend that the dates did not appear on the invoices at the time he signed them, or that they had been changed since that time. A fair analysis of his testimony is that he simply denied, in spite of his acknowledgments appearing on the invoices, that he had received any goods described in them. The evidence was in sharp conflict; the plaintiff's evidence, though meager and weak, was sufficient to carry the case to the jury, and we cannot hold that the verdict was without evidence to support it.
Judgment affirmed. Felton, C. J., and Nichols, J., concur.