#### Ott, Appellant, vs. Cream City Sand Company, Respondent.

*October 23*

November *13, 1917.*

*Trial: Waiver of jury trial: Motions for directed verdict: Evidence: Competency: Boohs of account: Sales: Action for price: Counterclaim for fraudulent overcharges: Waiver: Retention of bills rendered: Payments: Appeal from Milwaukee civil court.*

1. Where, in an action before a jury, a motion by plaintiff to dismiss a counterclaim was in effect a motion for a directed verdict in his favor, there was, under sec. 2857a, Stats., a waiver of jury trial and submission of the whole case to the court for decision.

2. Although a so-called ledger, not being the hook of original entry, was not admissible under sec. 4186, Stats., as presumptive evidence of the charges therein, yet in this case the testimony as to the destruction of the original hooks and as to the correctness of the ledger entries and the time and manner of making them was such that said entries might properly be used as memo-randa to refresh the recollection of witnesses, and after such use become admissible in connection with such testimony.

3. Slips or bills delivered by plaintiff in each instance with goods delivered to defendant, though offered and admitted in evidence for the purpose of showing delivery only, should on appeal be given their full and proper effect in connection with other undisputed facts.

4. Defendant’s retention without objection of such slips or bills (which showed the exact items and the balances of the running account for each month) and also of the monthly statements sent him, and payments made thereon during the time of such deliveries and after they had ceased, and especially after defendant’s attention had been called to the possibility of fraud or falsification in the accounts, justified the trial court in dismissing a counterclaim based upon alleged fraudulent overcharges.

5. The conclusions of the civil court of Milwaukee county as to the facts in an action wherein a jury trial was waived being supported by the evidence, its judgment properly based on such facts should have been affirmed by the circuit court on appeal.

Appeal from a judgment of the circuit court for Milwaukee county: W. J. Turnee, Circuit Judge.

*Reversed.*

*229The plaintiff sued in tbe civil'court of Milwaukee county for a balance of $415.95 for groceries and meats supplied defendant between March 18 and November 1, 1915, for use on a boat operated by defendant on Lake Michigan.

The defendant alleged, by way of answer and counterclaim, that during the preceding season of 1914 and the one in question defendant had ordered from plaintiff meats and groceries of the value of about $1,100, for which it had fully *paid;*that during substantially all the period of the two navigation seasons there had been a conspiracy between the plaintiff and defendant’s cook, who had charge of the ordering and receiving of such, meats and groceries, so that, upon the promise and payment of money, wines, tobacco, and cigars to such cook, large overcharges were made for such meats and groceries, and that defendant had thereby been defrauded of upwards of $300, for which sum it demanded judgment as well as for the dismissing of the complaint.

It appeared upon the trial that orders for such meats and groceries as received from time to time were entered in one of many order books kept by plaintiff in which was written the amounts so ordered and the prices charged. Erom these order books, and at substantially the same time, entries were made in a so-called ledger, and from this ledger bills were made out atf the time of the sending of the goods, which bills were itemized as to amounts and prices, and there was also carried.on each bill or slip the balance then claimed by plaintiff to be existing for each month for either groceries or meats. The order books were not produced on the trial and appear to have been destroyed with a quantity of other such books after the commencement of the action and before the trial.

On request of plaintiff the defendant produced in court substantially all of such bills or slips, and in the few instances where certain bills were not produced the same- balances found in the ledger after such missing items appeared *230on subsequent slips. Tbe last slip or bill for meats was dated October 23d and for groceries October 27 th, showing, tbe amounts claimed due by plaintiff for such month and corresponding with tbe accounts in tbe ledger. Separate statements appear also to have been rendered showing tbe balances due for tbe respective months, and those of May, June, July, and August were produced and correspond with tbe statements in tbe ledger and tbe complaint.

Payments were made by defendant on this account from time to time while tbe deliveries were going on and also after such final deliveries; $100 November 1 and $100 November 20, 1915. Plaintiff and bis wife testified in substance that tbe entries in tbe ledger were made at or about tbe time of tbe transactions; that they were correctly entered and tbe prices were reasonable. Plaintiff gave testimony from which it might be inferred that be bad examined tbe so-called ledger, was familiar with tbe items, and that tbe entries are just and reasonable; that be checked everything that was delivered and that everything in tbe book is correct.

One of defendant’s officers testified that sometime either in July or August, 1915, a former employee of plaintiff who bad just been discharged or who bad left plaintiff’s employ told him that there bad been overcharges and falsifications of tbe accounts during tbe preceding season and during tbe season in question. That from that time on tbe defendant bad tbe delivery of tbe goods and bills from the plaintiff carefully watched; bad some articles weighed, and found in some instances overweights in its favor, but discovered no indication of fraud by plaintiff. That defendant made no complaint to plaintiff with reference to any such possible fraud or overcharges until December, 1915, and after having bad tbe statements of the final deliveries and making tbe two payments on account in November. Tbe so-called ledger was received *231in evidence as an account book after proof bad been made of tbe destruction of tbe order books.

At tbe close of tbe testimony on tbe trial before a jury tbe plaintiff moved to dismiss defendant’s counterclaim. Tbe defendant then moved for judgment in its bebalf. Then, without making any reservation and also without expressing in any way whether be considered it a submission under sec. 28570, Stats., and apparently on bis own motion, tbe court announced to tbe jury that in bis opinion there was no dispute but that tbe goods were sold and delivered to tbe amount claimed and that there was not sufficient evidence upon which a verdict could stand as to tbe claim of fraud or conspiracy, that tbe payments in November were a ratification of tbe transaction, and directed the jury to find a verdict for tbe plaintiff. Judgment was entered thereupon and appeal taken to tbe circuit court.

Upon review in tbe circuit court tbe judgment was reversed and a new trial ordered in that court for reasons stated to be that tbe so-called ledger was not properly proven and should not have been considered and that there was therefore an issue of fact left as to whether or not tbe goods to tbe amount claimed bad been delivered, and also that there was testimony sufficient to.go to tbe jury as to whether or not there bad been a conspiracy or fraud. From tbe judgment of tbe circuit court so ordering a new trial plaintiff appealed.

For tbe appellant there was a brief by *Kleist. Harriman & Knappe*of Milwaukee, and oral argument by *E.*TF. *Knappe.*

For the respondent there was a brief by *Lorenz & Lorenz*of Milwaukee, and oral argument by *Leroy B. Lorenz.*

Eschweiler, J.

Sec. 2857a., Stats., provides that when in a jury trial all tbe parties to tbe action shall, without reservation, move the court to direct a verdict, such motions shall, *232unless otherwise directed by the court, he considered as equivalent to a stipulation by the parties waiving a jury trial and submitting-the entire case to the court for decision of the facts as well as the law. Although the plaintiff did not in his motion expressly request any particular judgment other than a dismissal of the counterclaim, yet, upon the state of the record as it then stood and the rulings upon the evidence by the trial court, the dismissal of the counterclaim would have necessarily resulted in judgment for the plaintiff for the amount of his claim, and therefore such motion could properly he considered as one in effect for a directed' verdict in plaintiff’s favor. The defendant moved for judgment in its favor. Neither the litigants nor the court at that time referred to the provisions of this sec. 28510, hut the situation made by the parties brought the case clearly within this section, and we hold that there was a waiver of jury trial and a submission of the entire case to the court for decision of the facts as well as the law.

The so-called ledger, not being the book in which the first or original entries of the account were made, was not admissible under sec. 4186 as presumptive evidence, in and of itself, of the charges therein contained. Although the evidence as to the entries in this book was meager and unsatisfactory, yet there was sufficient in the testimony of the plaintiff and his wife as to the correctness of these entries and the time and manner of making the same that they might be properly used as memoranda to refresh the recollection of the witnesses as to the transactions in question, and after such use become admissible in connection with such testimony, under the rule in the cases of *Campbell v. Germania F. Ins. Co.*163 Wis. 329, 338, 158 N. W. 63; *Manning v. School Dist.*124 Wis. 84, 97, 102 N. W. 356; *Bourda v.*Jones, 110 Wis. 52, 58, 85 N. W. 671; *Riggs v. Weise,*24 Wis. 545; *Schettler v.*Jones, 20 Wis. 412.

*233But the judgment of the civil court may well he upheld on another ground and from undisputed, facts in the record. While the so-called slips or bills delivered in each instance with the deliveries of the groceries or meats and retained by the defendant were apparently offered in evidence by plaintiff for the purpose of showing delivery only and held to be admitted by the court only for that purpose, yet, being before the court, they now ought to be given their full and proper effect in connection with the other undisputed facts. We are satisfied that there is complete support for the conclusion to which the trial court came, viz. that the goods to the amount and for the prices charged as contained in those slips had been delivered by plaintiff to defendant, from the evi.dence of the sending to defendant from time to time these bills and statements showing the exact items and the balances of the running account for each month and also the monthly statements, together with the retention of the same by defendant without objection and its payments thereon during the period of the deliveries and for such a time after the ■final deliveries as must he held to have been more than sufficient in which defendant might have examined the accounts and found grounds for objection if there were any. Especially is that so where, as here, defendant’s attention had been challenged in July or August to the possibility of there being just such fraud or falsification as it attempted to set up in its answer. Its retention without objection of the statements, and payments made thereon during the time of and after such deliveries had ceased, all without question or objection, were not only ample *prima facie*evidence of the correctness of the account and of the fact of the delivery of the goods, hut might well have been held by the trial court, in the absence of any evidence to the contrary, conclusive evidence thereof. *Gurnett v. J. H. Flick C. Co.*163 Wis. 574, 158 N. W. 325; *Miller v. Ryder,*145 Wis. 526, 130 N. W. *234518; *Ripley v. Sage L. & I. Co.*138 Wis. 304, 119 N. W. 108; *Jones v. De Muth,*137 Wis. 120, 118 N. W. 542; *Rose v. Bradley,*91 Wis. 619, 65 N. W. 509; *Shaw v. Lobe,*58 Wash. 219, 108 Pac. 450, 29 L. R. A. n. s. 333, 348; *Oil Co. v. Van Etten,*107 U. S. 325, 334, 1 Sup. Ct. 178; *Bradley v. McDonald,*218 N. Y. 351, 388, 113 N. E. 340; 16 Cyc. 962.

It is not deemed necessary to further recite herein the testimony given on behalf of defendant which it is claimed required the submission of the issue raised by the counterclaim to be submitted to the jury. We have considered it and are convinced that the civil court was right and justified in dismissing the counterclaim for want of sufficient evidence.

Under the rule as stated in *Mechanical A. Co. v. A. Kieckhefer E. Co.*164 Wis. 65, 159 N. W. 557; *Keck v. Michigan Q. S. Co.*158 Wis. 500, 149 N. W. 208; *Sawyer B. Co. v. Steiner,*158 Wis. 508, 149 N. W. 1071; *Decker v. Beaver M. Co.*158 Wis. 471, 149 N. W. 209, that should govern the circuit court on such appeals from the civil court, the judgment of the civil court should be and now is affirmed.

*By the Oourt.*— The judgment of the circuit court is reversed, and the cause remanded with directions to affirm the judgment of the civil court.