#### Goff, Appellant, vs. Stoughton State Bank, Respondent.

*November 5*

November *25, 1890.*

*Evidence: Payment of draft:*Bes gestae: *Bank books: Burden of •proof.*

1. Tlie question being whether when a draft was delivered by plaintiff to the defendant bank it was paid or was to have been passed to his credit, testimony that at the close of business on that day the cash account of the bank and the actual cash on band balanced, and that this could not have occurred unless the amount of the draft had been paid to plaintiff, is not admissible as pertaining to the *res gesta,*numerous transactions between the bank and other persons having intervened, and the plaintiff not being present when the account and cash were so balanced.

[2. 'Whether, in such case, the books of the bank would have been competent evidence, or to what extent and for what purposes they might be used as evidence if admissible, not determined.]

*1073. The plaintiff having assumed the burden of showing *prima fade*that he had not been paid for the draft, an instruction that the burden was upon the defendant to prove payment, was unnecessary. [What the presumption as to payment would be in such a case, not determined.]

APPEAL from the Circuit Court for *Dane*County,

On April 9,1889, plaintiff delivered, to the cashier of the defendant bank, at its banking-house, a negotiable draft or check for $38.50, drawn by a firm in Illinois upon the Merchants’ National Bank of Chicago, payable to one Walters, and by him indorsed to the plaintiff. At the same time, plaintiff (who was a customer of the bank and one of its regular depositors) delivered his bank-book to the cashier, and requested that it be then balanced. The book was thereupon written up by a clerk and delivered to the plaintiff. The amount of the draft was not entered therein to his credit. A few days later the plaintiff ascertained that he was not credited with the draft, and requested the cashier to give Mm credit therefor on his bank-book. The cashier refused to do so, claiming he had paid plaintiff for the draft. This action is to recover the amount of such draft.

On the trial the plaintiff testified that the cashier did not pay him the amount of the draft. The cashier testified that he did so when the plaintiff delivered the draft to him. Testimony was introduced on either side which, it is claimed, tends to corroborate the statements of the plaintiff on the one hand and those of the cashier on the other.

The cashier and book-keeper or clerk of the bank testified, as witnesses in its behalf, that it was their business to make the cash-book of the bank kept by the clerk, and the actual cash on hand kept by the cashier, balance each day, and they were allowed by the court to testify, against plaintiff’s objection, that on April 9, 1889, and on several days immediately before and after that date, the cash-book and actual cash substantially balanced; and, further, that these *108would not have so balanced on April 9th had the draft not been paid. The books of the bank were not formally offered as evidence; yet, under like objection, these witnesses testified to their contents in some particulars, and to such balances. Further reference to the testimony will be found in the opinion.

The jury returned a verdict for the defendant. A motion for a new trial was denied, and judgment for the defendant entered pursuant to the verdict. The plaintiff appeals from the judgment..

For the appellant there was a brief signed by *Luse <& Wait,*and oral argument by *L. K. Lase.*

They argued, among other things, that the court improperly admitted the books of account of the defendant bank to prove payment for the draft. R. S. secs, 4186, 4181; *Winner v. Bauman,*28 Wis. 563; *Inslee v. Prall,*23 N. J. Law, 451; *Helton v. Hill,*58 Me. 114; *Basset v. Spoffiord,*11 N. H. 121; *Bieh v. Eld/i'idge,*42 id. 153; *Tv/rner v. Twing,*9 Cush. 515; *Townsend v. Townsend,*5 Harr. (Del.), *125; Pettit v. Teal,*57 Ga. 145; *Low v. Payne,*4 N. T. 247; *Irvin v. Wa/rtendyhe,*2 E. D. Smith, 374; 1 Phil. Ev. 379, 385; *Hess’ Appeal,*112 Pa. St. 168. They were not admissible as memoranda. No testimony was given to show that the witnesses did not recollect the facts sought to be proved by the introduction of the books, and upon the main question the cashier professed to remember accurately what trans-' pired. *Bussell v. H B. B. Oo.*17 N. T. 134; *Guy v. Mead,*22 id. 462; *Ha/meyv. Bherry,*76 id. 444; *Nat. Ulster Co. Banh v. Madden,*114 N. T. 280; *Kelsea v. Fletcher,*48 N. H. 282; *Sehettler v. Jones,*20 Wis. 412; *Biggs v. Weise,*24 id. 545; 1 Whart. Evi. secs. 238-240; *Nicholls v. Wébb,*8 Wheat. 326. Bank books stand upon the same footing as those of a private party. *Wolsey v. Bohn,*42 Minn. 235; *Bank, v. Officer,*12 Serg. & R. 49; *Bonnes v.*Simmons, 27 Ill. 512; 1 Greenl. Evi. secs. 474, 495 ; 2 Phil. Evi. 296, and *109note. Account books are only evidence where they contain charges of one party against another. *Reed v. Jones,*8 Wis. 436-467; *Masters v. Marsh,*19 Neb. 466; *Scmford v. Miller,*19 Ill. App. 536; *Putnam v. Goodall,*31 N. II. 419. The" burden of proof was upon the defendant to prove payment. *Rossiter v. Sehultz,*62 Wis. 655; Benj. on Sales, secs. 31l3, 335, 1055; *Smith’s Appeal,*52 Mich. 4Í5; *Terwilligen v.*Mwrplvy, 104 Ind. 32; 7 Wait’s Act. *& Dei.*396; Barb. Payment, 293; *Kcenig v.*Katz, 37 Wis. 157.

For the respondent there was a brief by *Baslford & O’ Connor,*and oral argument by *R. M. Bashford.*

They contended, *imter alia,*that there was no error in respect to the admission of the books of the bank. The entries or books were not offered in evidence. The book-keeper only referred to the books for the purpose of refreshing his memory, and it was proper that he should do so although the books themselves were not admissible. *Reed v. Jones,*15 Wis. 40; *Winner v. Baumcm,*28 id. 563; *Folsom v. Apple R. L. D. Go.*41 id. 602; *Ourram, v. Witter,*68 id. 16; Abbott, Tr. Evi. 326; *Pendelion v. Weed,*17 N. *Y.*72; *Dewey v. Hotehhiss,*30 id. 497. Possession of a negotiable instrument is presumptive evidence of ownership. *Kungerford v. Perhvns,*8 Wis. 267; *Dugan v. D. S.*3 Wheat. 173; *Morris v. Badger,*6 Cow.. 449; *Deem v. Hewitt,*5 Wend. 257;, *Palmer v. Ga/rd/ner,*77 Ill. 143; *Jewett v. Oooh,*81 id. 260; *Gcurvim v. Wiswell,*83 id. 215; 2 Eandolph, Comm. Paper, sec. 776; 3 id. secs. 1475-6,1648; 2 Greenl. Evi. secs. 527-8; *Oooh v. Helms,*5 Wis. 107; *Oonway v. Case,*22 Ill. 127; *Kidder v. Horrobin,*72 N. T. 169; Lawson, Presumptive Evi. 347; Id. 344, rule 75.

LyoN, J.

I. The controlling question of fact litigated on the trial was, Did the plaintiff deposit the draft for .$38.50 with the bank to be passed to his credit, or did he receive *110the cash therefor when he delivered it to the cashier? Upon this question the testimony is in direct conflict, and would support a verdict either way. To corroborate the testimony of its cashier that he paid plaintiff in cash for the draft, the bank was allowed to introduce testimony tending to prove that, at the close of its business on April 9th, its cash account and actual cash on hand balanced, and that this could not have occurred unless the amount of the draft had been paid to plaintiff on that day. The admission of such testimony is alleged as error.

It appears by the testimony of the cashier and bookkeeper that no entry in respect to the draft was made in the books of the bank when the plaintiff delivered the same to the cashier. It will be assumed, although the testimony is quite confused and unsatisfactory on the subject, that, when the accounts of the transactions of that day were made up after banking hours, the draft was entered in a book called the “remittance register,” and posted from that book into the cash account. The entry in the remittance register is entirely consistent with either theory of the case. It would have been so entered whether the plaintiff was paid the cash therefor or not. The posting of the amount of the draft from such register into the cash account would have necessarily disturbed the cash balance for the day, if the money had not been paid out for the draft, provided all other transactions of the bank on that day were accurately entered in the cash account. In that case cash would be credited with $38.50, which had not been paid out, and there would have been a discrepancy to that amount between the cash account and actual cash — the latter being just the amount of the draft too large. Hence a very persuasive argument in support of the defendant’s theory of the case can be based upon the alleged fact that the cash account and actual cash balanced on April *1119th. The testimony of such balance is therefore, or may be, important in the case, and, if improperly admitted, the error is material, and necessarily fatal to the judgment.

But little testimony was given concerning specific items of the cash account, but the testimony went mainly to the absence of entries therein showing that the draft in question was to be passed to the credit of plaintiff, and to the general fact that the cash substantially balanced on that day. It appears affirmatively by the testimony of the cashier that the cash account contained no entry showing-payment of the amount of the draft to the plaintiff. When asked if he had any record of such payment, he replied: “ I have no record of it at all more than this — I paid it.”

We do not doubt that any entries or transactions of the parties, or either of them, in respect to the draft which pertain to the *res gestw*may properly be proved by either party, but under the circumstances of this case, as above stated, we do not think it competent for the defendant to prove its own acts in respect thereto, unless such acts are part of the *res gestm.*We can conceive of no other valid ground for the admission of such proof. The draft was delivered to the cashier early in the day, and numerous transactions between the bank and other parties intervened before the cash was made up after banking hours. When the entries were made in the cash-book and the cash was balanced the plaintiff was not present and had no knowledge of the processes by which such balance was reached. It cannot properly be, said, therefore, that these processes pertained to the *res gestee.*In *Sorenson v.*Dundas, 42 Wis. 642, Ryan, C. J., said: *“*A meeting material to the issue took place between the parties. The court below permitted the respondent to testify in chief, in his own behalf, to an account of the meeting which he gave to strangers after it had ended and the parties had finally separated. This was *112not part of tbe transaction, but a subsequent narrative of it. Declarations are verbal parts of the *res gestee*only when they are contemporaneous. The respondent’s narrative after the occurrence belonged no more to the *res gestee*than his evidence on the trial. It is too clearly inadmissible for discussion. 1 G-reenl. Ev. § 110.” In the application of the rule, no difference is perceived between verbal and written statements of a party. We have here written statements made too late to be regarded as of the *res gestee.*We think the case is ruled by *Sorenson v. Dundas,*and hence that the testimony under consideration was improperly admitted. For this error the judgment must be reversed.

2. The books of the bank were not put in evidence, but, as we understand the case, the witnesses only resorted to certain entries therein, and to the general result deduced from all the entries, as memoranda for the purpose of refreshing their recollections of the transactions in question. We are not therefore called upon to determine whether such books would have been competent evidence for any purpose, or to what extent and for what purposes they might be used as evidence if admissible.

3. The court refused to instruct the jury, as requested by plaintiff, that the burden was upon the defendant to prove it paid for the draft. The plaintiff testified in his own behalf, when proving his side of the case, that he never received the money for the draft. He thus took upon himself the burden of proof, showing *prima facie*that he had not been paid for the draft, and the instruction became unnecessary, assuming it to be correct as an abstract proposition of law. See *Spaulding v. C. & N. W. R. Co.*33 Wis. 582. The court instructed the jury that, in the absence of any other proof, the presumption would be that the draft was paid for when delivered to the bank. This instruction was based upon an hypothesis not in the case, for there *113was other proof on the subject. It were better had the instruction been omitted. We determine no rule of presumption in the present case.

*By the*Oourt.— The judgment of the circuit court is reversed, and the cause will be remanded for a new trial.