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Priest v. Poleshuck

Decided: January 19, 1954.

BENJAMIN H. PRIEST, AS EXECUTOR OF THE ESTATE OF JULIA COLE, PLAINTIFF-RESPONDENT,
v.
SAMUEL POLESHUCK, DEFENDANT-APPELLANT



Clapp, Goldmann and Ewart. Ewart, J.A.D. (dissenting).

Per Curiam

Defendant appeals from a judgment entered in the Law Division on a jury verdict in favor of plaintiff for the sum of $595.97, and of no cause of action on defendant's counterclaim.

By his complaint, as modified by the pretrial order, plaintiff-executor sued on a book account for goods sold and delivered to defendant, demanding judgment for a balance due of $496.64, plus interest and costs. Defendant counterclaimed for $493.36, together with interest and costs. The book account attached to the amended complaint shows a total billing of $6,847.64 for goods sold and delivered by decedent, who was an interior decorator, and payments credited totalling $6,351, leaving the claimed balance of $496.64. Defendant's counterclaim is based upon purchases in the sum of $6,606.64 (this represents the total purchases of $6,847.64 set out in the complaint, less credits

of $51 for a defective club chair and $190 for two end tables which defendant claims Julia Cole loaned him and which she failed and refused to take back although defendant tendered their return), and payments of $7,100, resulting in an overpayment of $493.36.

Involved on this appeal are two payments of $300 and $500 for which defendant claims he received no credit. He exhibited two receipts signed by Julia Cole, respectively dated March 3, 1947 and November 8, 1949, as proof that such payments were made. The receipts were admitted in evidence.

There were only two witnesses: Marjorie Jones, who for eight years had served as secretary and bookkeeper to Miss Cole, and defendant. Miss Jones testified that $496.64 remained unpaid as shown by the Cole books of account received in evidence. Defendant then took the witness stand and presented the two receipts for $500 and $300. In rebuttal Miss Jones testified that the custom at the Cole establishment was not to enter customers' payments on the date the money was received, but rather when it was deposited. Payments would be accumulated and deposited in one lump sum, the several amounts being credited to the accounts of the respective customers as of the date of the deposit. The $500 payment of March 3, 1947 was not entered to defendant's credit until April 7, 1947, the date it was deposited, as shown in the account attached to the amended complaint and in the ledger. She testified, without objection, that the ledger entry represented the $500 shown on the March 3, 1947 receipt. Referring to her ledger, she showed how she had begun to write in the March date, but had crossed it off and entered "Apr. 7," the entry having been made on the date of the deposit.

As for the November 8, 1949 receipt for $300, she explained that this payment was represented by the ledger entry dated November 21, 1946. Miss Cole, she said, had mistakenly written '49 for '46. The handwriting on the receipt was Miss Cole's normal handwriting, but not as of November 8, 1949. The witness testified that Miss Cole had

undergone an operation for breast cancer on September 2, 1949, and had been confined to her home for five or six weeks. Thereafter the witness would drive her to the office where she would spend half a day, and then drive her home. During all this time and through November 1949, Miss Cole's arm, hand and fingers were swollen; although she could hold a pen or pencil, she could not write in normal fashion. In fact, she could not drive her own car. Miss Jones stated that the writing on the November 8, 1949 receipt was the way Miss Cole wrote in 1946. None of this testimony was objected to, nor was objection made when the witness was asked whether the November 21, 1946 ledger entry represented the receipt bearing the November 8, 1949 date. (Objection was belatedly entered to a similar question subsequently put; the court permitted it to be answered.)

Defendant concedes that Miss Jones, as decedent's bookkeeper, was familiar with the books of account, but contends that she was allowed to testify as an expert as to the two receipts without first having been properly qualified. The fact is that she did not testify as a handwriting expert but as a lay witness or common observer familiar with Julia Cole's writing. She could testify, as she did, to the fact that the two receipts were in her employer's handwriting, but that the November 8, 1949 receipt was written the way Miss Cole wrote in 1946. Cf. Koccis v. State , 56 N.J.L. 44, 46, 47 (Sup. Ct. 1893); State v. Morris , 98 N.J.L. 621, 624 (Sup. Ct. 1923), affirmed 99 N.J.L. 526 (E. & A. 1924); Gretowski v. Hall Motor Express , 25 N.J. Super. 192, 196 (App. Div. 1953); 7 Wigmore on Evidence (3 rd ed. 1940), § 1977 et seq.; 20 Am. Jur., Evidence , §§ 836 and 837, pp. 700, 701. There was, as noted, no objection to this testimony; objection is raised for the first time on this appeal. Here there is no plain error within the intendment of former Rule 1:2-20(c) (now R.R. 1:5-3(c)). State v. Ferrell , 29 N.J. Super. 183 (App. Div. 1954). Thus in the absence of timely and proper objection at the trial to the admissibility of the challenged evidence, which objection must state the grounds

therefor, there is no legal error on which to ground an appeal, however the court may otherwise view the competency of the testimony. Rule 3:46 (now R.R. 4:47); Slovak Catholic Sokol v. Foti , 13 N.J. Super. 458, 461 (App. Div. 1951), and cases therein cited. It is not true, as defendant claims, that the witness "lacked all knowledge on the subject in issue," for in the course of her long employment she became very familiar with the character of her employer's handwriting.

The testimony as to the books of account and the manner in which and the time when entries were made therein was, of course, proper in view of the fact that Miss Jones had for years personally kept the books of the business.

Defendant would give the contents of the two receipts in question a binding quality and conclusiveness which would forestall any attempt at explanation by plaintiff. However, it was quite proper to permit plaintiff to explain the difference between the dates of these receipts and those appearing in the ledger in order to show that defendant was not entitled to additional credits. It has uniformly been held that a receipt is only prima facie evidence of payment. A receipt, though evidence against the person who made it and those claiming under him, is not conclusive evidence except as to one who may have been induced by it to alter his position. It may, therefore, be contradicted or explained. Hoffman v. Rauchmiller , 95 N.J. Eq. 500 (Ch. 1923), affirmed 98 N.J. Eq. 692 (E. & A. 1925); Husted v. Sugarman , 106 N.J.L. 365 (E. & A. 1930); Adams v. Camden Safe Deposit & Trust Co. , 121 N.J.L. 389 (Sup. Ct. 1938); 9 Wigmore on Evidence (3 rd ed. 1940), § 2432, p. 104.

Defendant presently contends, for the first time, that the pleadings preclude plaintiff from introducing any evidence to establish facts inconsistent or contrary to those pleaded. The objection comes too late; not having been raised at the trial, it is not now available. Our present Supreme Court held, in Milstrey v. ...


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