Opinion
No. 31443
Decided February 9, 1949.
Pleading — Short-form petition on account, authorized — Section 11334, General Code — Method or manner of proof not prescribed — Business record of creditor's services, admissible in evidence, when — Parol evidence admissible to explain listing of name in account, when — Account admissible against actual debtor, when.
1. Section 11334, General Code authorizes and approves a short form of pleading in an action founded upon an account, but does not prescribe the method or manner in which a case may be proved.
2. In an action founded upon an account and instituted by the filing of the short-form petition permitted by Section 11334, General Code, a record kept in the ordinary course of business and authenticated as a record of services rendered by the creditor for the alleged debtor may properly be received in evidence.
3. The name under which an account is carried is not conclusive as to the identity of the real debtor.
4. Parol evidence is admissible to explain the listing of an account in a name other than the debtor's, where a direct relationship is shown to have existed between the creditor and the one sought to be charged with respect to the transactions covered by the account.
5. Where such relationship is established and it is further made to appear that the person sued is the actual debtor, the account is admissible in evidence against him.
APPEAL from the Court of Appeals for Franklin county.
This action was commenced in January 1944 in the Municipal Court of Columbus, by Willard W. Saperston and others, comprising the law firm of Saperston, McNaughtan Saperston, of the city of Buffalo, New York, against Rae-Columbus, Inc., an Ohio corporation.
The petition reads as follows:
"Plaintiff says there is due them from the defendant the sum of seven hundred fifty dollars ($750) for professional services rendered and for twenty-eight dollars and sixty-two cents ($28.62) in cash disbursements made by the plaintiff in behalf of defendant, which it claims with interest from the eleventh day of January 1944 as per itemized statement of the services rendered and expenditures made attached hereto and marked exhibit 'A.'
"Wherefore, plaintiff asks judgment against the defendant in the sum of seven hundred seventy-eight dollars and sixty-two cents ($778.62) with interest from the eleventh day of January 1944."
Exhibit A is a statement of the services alleged to have been performed and expenses incurred on behalf of the defendant during the last half of 1943.
No motion or demurrer was interposed to the petition, and the answer filed was a general denial.
Besides the account attached to the petition and marked exhibit A, plaintiffs offered as an exhibit at the trial the original ledger sheets of the account from plaintiffs' office, which exhibit was received in evidence over defendant's objection. These sheets were headed "Heinz Munschauer — New Management starting 7/15/43."
Two of the plaintiffs testified at the trial.
The Municipal Court made a finding for the plaintiffs in the full amount prayed for and entered judgment for such sum.
An appeal to the Court of Common Pleas resulted in an affirmance of that judgment.
A further appeal on questions of law was prosecuted to the Court of Appeals, where the judgments below were reversed. The entry of reversal "finds prejudicial error in the admission of a purported book account, which account was marked plaintiff's exhibit A, and that without this exhibit there was no competent evidence supporting any material allegations of the petition, by reason of which this court finds that the judgment of the Municipal Court of the city of Columbus, and the judgment of the Common Pleas Court of Franklin county in affirming said judgment is contrary to law, and this cause is, therefore, ordered remanded to the Municipal Court of the city of Columbus, with instructions that final judgment be entered for the defendant, Rae-Columbus, Inc. * * *."
The cause is now before this court for determination pursuant to the allowance of a motion to require the Court of Appeals to certify its record.
Mr. O.C. Ingalls, for appellants.
Messrs. Adams, Rapp McCann, for appellee.
It appears from the bill of exceptions that Rae-Columbus, Inc., had in prospect the receipt of a government contract for the manufacture of some 10 million metal brackets at a price of $223,000. In order to profit to a larger extent from such transaction, defendant was desirous of finding a manufacturing plant having a so-called "large [operating] loss carry-over" to which defendant could subcontract the bracket order and by doing so offset the earnings on the contract against the loss carry-over, thus accomplishing a considerable savings in federal taxes.
Such an industrial plant was that of Heinz Munschauer, at Buffalo, New York. Negotiations were entered into, followed in July 1943 by the execution of a "Purchase Agreement," a "Management Agreement" and a "Supplemental Purchase Agreement." The parties to all these agreements were "Heinz Munschauer, a New York corporation, with its principal place of business in the city of Buffalo, New York, party of the first part, hereinafter called company; Joseph Horchow, of the city of Columbus, Ohio, party of the second part, hereinafter called stockholder; G.R. Stinchcomb [president of Rae-Columbus, Inc.], of the city of Columbus, Ohio, party of the third part, hereinafter called manager; and Rae-Columbus, Inc., an Ohio corporation with its principal place of business at Columbus, Ohio, party of the fourth part, hereinafter called contractor."
As matters finally turned out, the bracket contract did not materialize and subsequently Heinz Munschauer was turned back to Horchow, an industrial broker, who had originally effected a settlement with its creditors in bankruptcy and had purchased the capital stock of the corporation from the owners.
Plaintiffs contend that the evidence clearly shows they were engaged directly by defendant to look after and protect its interests in connection with its utilization of the Heinz Munschauer plant, and that they performed varied and extensive services for the defendant in those respects, in accordance with the statements contained in the account submitted.
As nearly as we can understand it, defendant takes the position that all plaintiffs' services were rendered to Heinz Munschauer; that such fact is conclusively established by the original ledger sheets of the account headed "Heinz Munschauer — New Management starting 7/15/43," from which exhibit A was taken; that such account was inadmissible in evidence against defendant; that testimony could not be offered to explain the heading on the account; that, the account being inadmissible, plaintiffs were precluded from introducing evidence that the services rendered were actually for the defendant and charges were made against it; and that without the benefit of the inadmissible account there was not enough evidence to support plaintiffs' case.
We experience difficulty in following defendant's line of reasoning. The petition was good, especially in the absence of motion or demurrer. Union Properties, Inc., v. McHenry, 142 Ohio St. 136, 50 N.E.2d 315. Two of the plaintiffs, Wiltse and Alfred Saperston, appeared at the trial; testified positively and unequivocally that services were rendered by them expressly for the defendant at its request and that charges were made against the defendant; explained, in connection with the account and independently of it as well, the nature and character of the services performed; and asserted that the account offered and received in evidence constituted a true record of work done on defendant's behalf.
Both Wiltse and Saperston insisted that the services rendered the defendant were in fact worth considerably in excess of the amount sued for. Moreover, they were cross-examined at length as to various items in the account and on other subjects as well.
In addition to the testimony of the witnesses mentioned, a number of letters from defendant's attorneys were offered and received in evidence, without objection, disclosing direct dealings between plaintiffs and defendant and referring to services performed and to be performed by plaintiffs in the interests of and for the benefit of defendant.
From an examination of the authorities, we are convinced that Wiltse and Saperston, who asserted they had personally performed the services for the defendant, could properly testify, as to facts within their individual knowledge, to make a case against defendant. 32 Corpus Juris Secundum, "Evidence," 721, Section 792; 20 American Jurisprudence, 894, Section 1051. It was also permissible for them to testify that the words, "New Management," heading the account, referred to and comprehended the defendant. 20 American Jurisprudence, 969, Section 1106.
We believe the authorities sustain the following propositions:
1. The name under which an account is carried is not conclusive as to identity of the real debtor.
2. Parol evidence is admissible to explain the listing of an account in a name other than the debtor's, where a direct relationship is shown to have existed between the creditor and the one sought to be charged with respect to the transactions covered by the account.
3. Where such relationship is established and it is further made to appear that the person sued is the actual debtor, the account is admissible in evidence against him.
Section 11334, General Code, authorizes and approves a short form of pleading in specified cases, including an action founded upon an account, but does not prescribe the method or manner in which a case may be proved.
This court has examined the record carefully. In our opinion the case was fairly tried in the Municipal Court without the intervention of reversible error. The matter presented was largely one of fact and competent evidence was introduced to sustain the judgments in plaintiffs' favor.
Therefore, the judgment of the Court of Appeals is reversed and those of the Municipal Court and Court of Common Pleas are affirmed.
Judgment reversed.
HART, STEWART and TAFT, JJ., concur.
TURNER, J., dissents.
MATTHIAS, J., not participating.