Opinion
1 Div. 913.
February 20, 1936. Rehearing Denied April 23, 1936.
Appeal from Circuit Court, Baldwin County; F. W. Hare, Judge.
Jesse F. Hogan, of Mobile, for appellant.
A statement made by a principal debtor to his employer during the term of his employment and in respect to the business for which the sureties are bound by their contract is admissible against the sureties in an action against them to recover damages for breach of bond executed by them in favor of the employer. United States Fidelity G. Co. v. Benson Hdwe. Co., 222 Ala. 429, 132 So. 622; Walling v. Morgan County, 126 Ala. 326, 28 So. 433; Indemnity Ins. Co. of North America v. Krone, 177 Ark. 953, 9 S.W.(2d) 33, 60 A.L.R. 1500; 2 Wigmore, Evi. § 1077. The daily report of business made by an employee for his employer during his employment and in the regular course of business is admissible against his sureties in an action against them for the breach of an indemnity bond. Ex parte Barrett Bros. Shipping Co., 196 Ala. 655, 72 So. 259; Hartford F. I. Co. v. Owen, 22 Ala. App. 414, 116 So. 310. And preliminary proof of correctness is not necessary. Alabama Fidelity Cas. Co. v. Alabama P. S. Bank, 200 Ala. 337, 76 So. 103. Duplicate copies of instruments regarding the transactions of the agent made by him during his employment and in regular course of business are original records of such transactions and are the best evidence of them. Sovereign Camp v. Hoomes, 219 Ala. 560, 122 So. 686.
Hybart Chason, of Bay Minette, for appellees.
Statements of past shortages by the principal were not binding on the defendants, were hearsay, and inadmissible. W. T. Rawleigh Co. v. Hooks, 16 Ala. App. 394, 78 So. 310; J. W. Watkins Co. v. Lovelady, 186 Ala. 414, 65 So. 52; 14 R.C.L. 44; 12 R.C.L. 1057; Saint v. Wheeler W. Mfg. Co., 95 Ala. 362, 10 So. 539, 36 Am.St.Rep. 210; W. T. Rawleigh Co. v. Jordan, 22 Ala. App. 395, 396, 116 So. 302; Lewis v. Lee County, 73 Ala. 148, 152. The records offered were not shown to have been correct, and could not be binding on defendants.
Action of assumpsit by appellant against appellees on a bond guaranteeing and insuring the plaintiff against loss in consequence of the infidelity of plaintiff's employee, J. S. Brewton, to recover the sum of $987.72, coming into his hands as such employee, which he converted to his own use and for which he failed to account. Craft v. Standard Acc. Ins. Co., 220 Ala. 6, 123 So. 271; United States Fidelity Guaranty Co. v. Benson Hardware Co., 222 Ala. 429, 132 So. 622.
The defendants pleaded the general issue and that the instrument sued on was without consideration. One of the defendants pleaded specially a conditional delivery of the obligation and a breach of the condition. On issue joined the plaintiff offered as evidence an affidavit and statement delivered to plaintiff's auditor in which Brewton admitted his shortage to the amount claimed.
This admission by the employee as to past transactions was clearly hearsay as to defendants, and the court properly sustained the defendants' objection thereto. United States Fidelity Guaranty Co. v. Benson Hardware Co., 222 Ala. 429, 132 So. 622.
The original sales tickets and the "record" kept by Brewton were not brought within the rule of admissibility by showing that "the party making the entries must have had personal knowledge of the transactions entered." Loveman, Joseph Loeb v. McQueen, 203 Ala. 280, 82 So. 530, 533; Denson v. Kirkpatrick Drilling Co., 225 Ala. 473, 144 So. 86.
The record appears free of errors.
Affirmed.
ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur.
On Rehearing.
The appellant in its application for rehearing states: "As we read the record, the undisputed evidence shows that J. S. Brewton, before his employment had terminated and while he was performing the duties for which the surety was bound, made a written admission that he was in default in the sum of $987.72, which he had converted to his own use."
The alleged written admission of Brewton, made on May 4, 1929, shows on its face that his relation as agent of the plaintiff terminated on May 3, 1929. Therefore, if it be assumed that the rule of the case applicable to principal and surety applies to a guarantor or insurer — an obligation to which the employee is not a party — the court ruled correctly in sustaining the objection to the item of evidence.
Application overruled.
ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur.