OPINION 1. Respondent has filed a petition for a rehearing as to the item of $210.62, of plaintiff's first cause of action, and the item of $288.89, of the second cause of action.
In support of the petition for rehearing it is said:
"This Honorable Court having declared in its opinion that the demurrer and motion to strike, filed on behalf of appellant, Hartford Mining Company, were waived, the sole remaining question upon which this petition for rehearing depends is whether or not there is competent evidence of the liability of defendant and appellant, Hartford Mining Company, for the items Two Hundred Ten Dollars and sixty-two cents ($210.62) and Two Hundred Eighty-eight Dollars and eighty-nine cents ($288.89). These obligations are expressly admitted in the testimony of Mr. George Drysdale, president and treasurer of the appellant, Hartford Mining Company. See pages 66 and 67, volume I, transcript on appeal, wherein the witness George Drysdale testified, as president and treasurer of the appellant, Hartford Mining Company, in substance: That the Hartford Mining Company had received statements of account from the Home Lumber and Coal Company and from the Commercial Hardware Company; that those statements were full, true and correct statements of materials furnished to the Hartford Mining Company. This testimony given by the president and treasurer of the appellant, Hartford Mining Company, sufficiently establishes the correctness of the items of Two Hundred Ten Dollars *Page 370 and sixty-two cents ($210.62) and Two Hundred Eighty-eight Dollars and eighty-nine cents ($288.89) for which personal judgment was given against the appellant, Hartford Mining Company, without regard to the question of any error on the part of the trial court in admitting in evidence the ledger sheets of the respondent and of its assignor, the Commercial Hardware Company."
The foregoing statement seems conclusive at a mere glance, but we do not think the testimony of Drysdale supports the contention made. As to the statement which he received from the Home Lumber Coal Company, the record reads:
"Q. I will ask you if you have ever received from the Home Lumber and Coal Company any statements for any materials furnished the Hartford Mining Company? A. Yes, I have.
"Q. Have you ever controverted or denied any of those statements? A. No, as far as the Hartford Mining Company.
"Q. They represent materials actually furnished? A. They do."
He further testified:
"Q. Did you ever have any occasion to deny or controvert those statements? A. No.
"Q. So far as you knew and believed, those statements were all full, true and correct statements of material furnished by the Commercial Hardware Company to the Hartford Mining Company? A. They are."
It must be kept in mind that the witness was testifying as to statement which he received months before the trial, in April 1937, and probably some months before the suit was brought, and not to any statement introduced in evidence. Furthermore, so far it appears from the record, no statement of either account was introduced in evidence. This being true, it can hardly be said that the contention is well founded. *Page 371 2. Furthermore, the testimony of Drysdale was improperly admitted over objection, as no basis had been laid therefor, he having been called as a witness for plaintiff.
In view of the fact that a retrial will probably be had in this case, an opportunity will be afforded plaintiff to supply the necessary evidence.
Petition denied.