#### DAIRY & ICE CREAM SUPPLY COMPANY, INC., v. GASTONIA ICE CREAM COMPANY.

(Filed 22 November, 1950.)

1. Evidence § 36—

Tbe rule permitting tbe introduction in evidence of original entries recorded in regular course of business at or near tbe time of tbe transactions involved, when authenticated by one wbo is familiar with them and tbe method under which they were made, cannot be extended to permit a witness wbo has no personal knowledge of tbe transactions to testify in regard thereto from a memorandum or statement of such transactions made up by a bookkeeper under tbe witness’ direction from such original records.

2. Appeal and Error § 40i—

Nonsuit will not be granted on appeal notwithstanding that the evidence relied upon by plaintiff is incompetent and was erroneously admitted, since plaintiff might have offered other proof if the incompetent evidence had been excluded at the trial.

Appeal by defendant from *Alley, Emergency Judge,*May Term, 1950, of GastoN. New trial.

This was an action to recover the value of empty .cream cans and jackets which it was alleged the defendant had failed to return to plaintiff according to contract.

Plaintiff, a Georgia corporation, was engaged in business in Atlanta in buying and selling dairy supplies and equipment, and during 1947 and 1948 shipped to the defendant a quantity of frozen cream in cans and insulated jackets by Southern Railway baggage, under agreement that the empty cans and jackets be returned to plaintiff by the same method of transportation.

Plaintiff claimed to have shipped to defendant during the period from February 1947 to April 1948, 1,528 cans and 1,113 jackets, and received back-1,129 cans and 896 jackets, leaving 399 cans and 217 jackets unre-turned of the value of $5 each, amounting to $3,080. Suit was instituted to recover this amount. Plaintiff’s only witness was J. M. Henson, the president of plaintiff corporation, who was permitted over objection to -testify from a pencil memorandum as to the number of cans and jackets shipped and returned, together with the dates, covering 113 transactions during the period mentioned. The witness had no personal knowledge of the shipment and return of cans though the business was conducted under his general supervision. “Mr. Taylor handled the shipping and had the cream shipped. I did not handle it. . . . Attached to the duplicate order at the end of the day was a signed copy from the (railroad) baggage department that they had received that shipment.” Shipments were sent to the Southern Railway by plaintiff’s trucks and receipts brought *685back by tbe drivers, and upon notice by tbe carrier of tbe arrival of returned cans and jackets tbe plaintiff would send trucks and pick tbem up. Plaintiff bad some 50 customers to whom similar shipments were made and by wbom cans were returned. Cans were' all alike. There were other shippers of like products from Atlanta. “Tbe knowledge I have about tbe cans coming into tbe depot would be from truck drivers that went there to pick tbem up . . . tbe shipping clerk and baggage clerk would tell me.” Tbe custom was for defendant to deliver tbe cans back to tbe same carrier for transportation by baggage. Witness bad no means of knowing how many cans tbe defendant took to tbe baggage room in Gastonia. No waybills were issued, but baggage checks were used. “We kept record of our sales on a ledger record just like a ledger record of merchandise we shipped to somebody. Nothing on that page except cans and jackets that go out, and cans and jackets that come back ... I never made those entries myself.”

This witness was permitted to read to tbe jury from a written statement tbe dates of shipment, the number of cans and jackets shipped, and tbe number returned. “Tbe statement that I bad this morning and which I read from was made up in pencil by the bookkeeper under my direction. She and I went along and got this thing together and she wrote tbe things down.” Witness testified that daily reports were put on his desk each day, and tbe records were kept in a binder in his office, and that he took them out and brought them with him.

There was verdict for plaintiff for the amount claimed, and from judgment in accord therewith defendant appealed.

*Basil L. Whiiener for plaintiff, appellee.*

*Garland & Garland for defendant, appellant.*

DeviN, *J.*

The plaintiff undertook to establish the facts upon which it based its action by the testimony of its president, who read to the jury from a written statement purporting to show the numerous items constituting plaintiff’s claim. It was testified this statement had been made up by a bookkeeper under witness’ direction from the records in his office. The witness had no personal knowledge of the shipments of cans of frozen cream, except from the carrier’s receipts, or of defendant’s failure to return the empty containers, except from the reports placed on his desk. Defendant noted exception to this testimony, and assigns its admission as error.

The rule of evidence formerly observed by the courts limiting proof of items of business transactions to matters within the personalknowl-edge of a witness, has undergone revision in the light of modern business conditions and methods. *Ins. Co. v. R. R.,*138 N.C. 42, 50 S.E. 452; *686*Breneman Co. v. Cunningham,*207 N.C. 77, 175 S.E. 829; *Chaffee v. U. S.,*18 Wallace, 516. Tbe impossibility of producing in court all tbe persons wbo observed, reported and recorded eacb individual transaction gave rise to tbe modification which permits tbe introduction of recorded entries, made in tbe regular course of business, at or near tbe time of tbe transaction involved, and authenticated by a witness wbo is familiar with them and tbe method under which they are made. This rule applies to original entries made in books of account in regular course by those engaged in business, when properly identified, though tbe witness may not have made tbe entries and may have bad no personal knowledge of tbe transactions. *Flowers v. Spears,*190 N.C. 747, 130 S.E. 710; *Peebles v. Idol,*198 N.C. 56 (60), 150 S.E. 665; *Supply Co. v. McCurry,*199 N.C. 799 (802), 156 S.E. 91; *Edgerton v. Perkins,*200 N.C. 650, 158 S.E. 197; *S. v. Shipman,*202 N.C. 518 (525), 163 S.E. 657; *S. v. Lippard,*223 N.C. 167 (172), 25 S.E. 2d 594; Stansbury on Evidence, sec. 155; 20 A. M. Jur. 881, 892. See also *Branch v. Ayscue,*186 N.C. 219, 119 S.E. 201; *S. v. Breece,*206 N.C. 92, 173 S.E. 9, and *Lister v. Lister,*222 N.C. 555 (563), 24 S.E. 2d 342.

But in tbe ease at bar, according to tbe record before us, tbe plaintiff did not introduce tbe original entries made in tbe regular course of business at tbe time tbe transactions occurred, but offered to prove tbe facts about 113 transactions extending over a period of 15 months by a witness wbo was speaking not from personal knowledge but reading from a written statement made for him by a bookkeeper in bis office. The objection to tbe evidence thus presented should have been sustained.

Though this was the only evidence offered by plaintiff, defendant’s motion for judgment of nonsuit cannot be allowed as but for tbe court’s ruling plaintiff might have offered other proof. *Morgan v. Benefit Society,*167 N.C. 262, 83 S.E. 479; *Midgett v. Nelson,*212 N.C. 41, 192 S.E. 854; *Gibbs v. Russ,*223 N.C. 349, 26 S.E. 2d 909; *Ballard v. Ballard,*230 N.C. 629 (635), 55 S.E. 2d 316.

For tbe reasons stated there must be a

New trial.