Chan Kiu Sing v. Gordon , 171 Cal. 28 ( 1915 )

The defendants appealed from the judgment and from an order denying their motion for a new trial.

The appellants executed to the plaintiffs a lease for twenty acres of agricultural land planted in asparagus, for the term of one year ending July 31, 1911. The plaintiffs claim that, upon the expiration of said term they held over for more than sixty days, and that, thereby, the said lease was renewed, under section 1161 of the Code of Civil Procedure, for another year expiring July 31, 1912. In January, 1912, without the consent and against the will of plaintiffs, the appellants, and others acting under their direction, entered upon the premises, ousted the plaintiffs, and plowed up and destroyed the asparagus growing thereon. The plaintiffs thereupon began this action to recover the damages alleged to have been caused by the trespass aforesaid. They alleged that they suffered damages therefrom in the sum of fifteen thousand dollars. The court found in their favor and assessed the damages at three thousand dollars.

The appellants demurred to the complaint on the ground that it was ambiguous in that it did not set forth separately the amount of damages caused by the respective acts of trespass alleged. It is unnecessary to determine whether or not this objection was well taken, since there was no claim on the trial that any damage was caused except by the destruction of the crop of asparagus. When the case again reaches the lower court the plaintiffs may amend their complaint in this respect.

The evidence showed that the roots of asparagus are perennial, that the profits come from the shoots which grow therefrom each year, and that this land had been planted in asparagus for more than five years before the alleged destruction thereof. For the purpose of showing the damage caused by said destruction, the plaintiffs undertook to prove the probable yield and value of the crop which would have grown upon the premises during the remaining portion of the lease under which they held the same, if the asparagus roots had not been destroyed. They attempted to show the gross receipts and expenses of the premises for the five years preceding the destruction of this crop, in order to establish the average yield per acre of the land in ordinary years and under usual conditions. This was in accord with the rule established by the decision in Teller v. Bay and River Dredg. Co., 151 Cal. 209, [12 Ann. Cas. 779, 12 L. R. A. (N. S.) 267, 90 P. 942]. For this purpose, Chan Kiu Sing, one of the plaintiffs, was allowed to testify to the contents of the account books of the plaintiffs showing that the average yearly net profits of the asparagus from this land, for the preceding five years, had exceeded six thousand dollars. The evidence concerning the books was admitted over the objection of the appellants that the books were incompetent and self-serving, that they had not been kept by the witness and were not shown to be books of original entry. The only evidence on the subject was that of Chan Kiu Sing. He testified that the books were kept under his direction, that he was familiar with them and had examined them within the last day or two, that they were kept by the foreman on the premises and he saw them occasionally, and that they were in the Chinese language. We think the court erred in admitting the testimony as to the contents of the books without further authentication. In order to lay the foundation for the admission of such evidence it must be shown that the books in question are books of account kept in the regular course of the business, that the business is of a character in which it is proper or customary to keep such books, that the entries were either original entries or the first permanent entries of the transactions, that they were made at the time, or within reasonable proximity to the time, of the respective transactions, and that the persons making them had personal knowledge of the transactions or obtained such knowledge from a report regularly made to him by some other person employed in the business whose duty it was to make the same in the regular course of business. (1 Elliott on Evidence, secs. 458 to 463, inclusive; 2 Wigmore on Evidence, sec. 1554; 2 Jones on Evidence, sec. 322.) There are many decisions in this state holding that books of account, properly authenticated by preliminary proof, are admissible in evidence, but all of them recognize the proposition that there must be proof of the character above stated in order to render them admissible. (Watrous v. Cunningham, 71 Cal. 32, [11 P. 811];Landis v. Turner, 14 Cal. 573; Roche v. Ware, 71 Cal. 377, [60 Am. Rep. 539, 12 P. 284]; Bushnell v. Simpson,119 Cal. 662, [51 P. 1080]; Kearns v. McKean, 76 Cal. 89, [18 P. 122].) The testimony of the witness on this subject came far short of the requirements of the law. He did not say that the entries were contemporaneous with the transactions or within reasonable proximity thereto, or that the person making them had knowledge of the transactions. There was evidence that many items of the expenses were paid by the witness himself. He did not reside on the premises, but was engaged in other occupations. The work on the ranch was done by hired men. There was no evidence showing how the business was carried on, nor who received the proceeds of the sales of the crops, nor how the foreman obtained knowledge of the items entered, nor any general statement that the books were correctly kept, nor that Chan Kiu Sing was present at the ranch during that period.

The admission of this evidence was an error of sufficient gravity to justify a reversal of the order denying the motion for new trial. There was no other substantial evidence of the probable value of the crop claimed to have been destroyed. The court could only determine that value by an inference that it would approximate the value it had reached in previous years. No witness testified to the fact that the previous profit had been equal to the amount shown by the books, or that there had been any previous profits. On the other hand there was evidence given by some three or four witnesses, apparently persons of good repute, to the effect that Chan Kiu Sing himself had repeatedly stated that the premises had not been profitable and for that reason that he was unable to pay any greater rent than eight hundred dollars per annum. This was clearly sufficient to arouse the suspicion that the books were not accurately kept.

The judgment and order are reversed.

Sloss, J., and Lawlor, J., concurred.

Hearing in Bank denied.