(dissenting). In his answer the defendant admitted that he authorized the firm of C. R. Rathborne Sr Co. to sell short 900 shares of the Northern Pacific Railway" Company and 200 shares of Chicago, Burlington Sr Quincy Railroad Company stock, and averred that thereafter, without his consent, authority, or knowledge, such firm bought in for his account the same stock. The answer further alleges that, if the firm sold and thereafter purchased the stock, it was done without the consent, knowledge, or authority of defendant, and without previous notice of intention so to do to defendant. Upon the trial the defendant made no defense, introducing no evidence, and placed his reliance mainly upon what he could find vulnerable in the plaintiff’s case. Taking the form of the answer, supplemented as it was by testimony that was unobjectionable, and enforced by the defendant’s letter admitting liability, there was sufficient foundation for the inference that, by authority and with knowledge of the defendant, the plaintiff’s firm had first sold short, and thereafter bought in to cover for the account of the defendant, the stocks in question. What remained in doubt were the prices at which the stocks were sold and the purchases made; and, for the purpose of fixing such prices, the only evidence of which, it seems to me, the case was susceptible, was introduced, namely, the account books of the firm, consisting of the original entries made by thé bookkeeper who had *351charge of making them, and who testified that they were made at the time from information given him by the telephone boy in the office, who received it from the telephone messenger in the exchange, who, in turn, received the information from the exchange member of the firm. This testimony was corroborated by the plaintiff, who was the exchange member, and gave the information. The two telephone boys were not called, but to do so would have been a useless formality, because, from the nature of the transactions, it would be impossible for them, in the ordinary run of business, to remember any particular transaction upon a particular day; and more especially would it be impossible for them to recall the prices at which the stocks were sold, and subsequently purchased, and which they sent and received over the telephone and gave to the bookkeeper. The telephone clerks were but part of a'system or means of communication between the exchange member of the firm and the bookkeeper, by which the former was enabled to communicate his transactions on the exchange to his office. It would be as idle to call them, as it would be, with reference to the sending of a letter or telegram, to call the postman who regularly receives and delivers written messages, or the telegraph operator who regularly forwards and delivers communications by wire, because neither of the clerks could add any certainty to the testimony of the plaintiff who made the sale or purchase on the exchange, supplemented by the testimony of the bookkeeper who received the information thereof, and, as part of the transaction, entered it at the time in the firm’s books.
I agree with Mr. Justice LAUGHLIN that the rule that obtains with reference to introducing shopkeepers’ and tradesmen’s books in evidence has no application; and for the simple reason that such a rule, if applied to -the books of account of large business enterprises, would in nearly every instance operate as a denial of justice. The old common-law rule of" evidence as to tradesmen’s books is no longer applicable to most of our modern methods of carrying on large and extensive business transactions. The position' of the ancient shopkeeper, who himself sold and delivered his goods direct to the customer, and who made his own memoranda in books, was enlarged when, with the increase of business, he was obliged to employ a bookkeeper or a clerk, and to resort to entries in books of account made by the clerk or bookkeeper, because in no other way could he keep track of the growth in his business. With the introduction of department stores, embracing a number of different kinds of trade, and the information of exchanges, with their indefinite extension of daily transactions, and of large- corporations, whose business is conducted through numerous agencies, the old rule with respect to them can have no place, and it is useless longer to refer to it as in any sense applicable to such modern methods of doing business. It is inconceivable, with the growth in every other direction, that the law itself should not grow so as to meet the changed conditions; and it seems to me, in such a case as this, a waste of time to expend labor in the discussion of old rules which can have no possible bearing upon or application ■.to-the reasons or principles which should govern in determining the extent to which books of account, such as are here involved, may *352be resorted to as evidence. It is, of course, necessary that a proper foundation for their introduction should be laid, in order that their verity may be established; but when this is done by the most complete and satisfactory proof which, from the nature of the business, can be obtained, then the reason which permits the best evidence to be given should be held as applicable to such books of account, properly authenticated, as to any other kind of evidence. I think, therefore, that where a proper foundation is laid, as in this case, for introducing entries in books of account of the nature and character of those here involved, and which are resorted to merely for the purpose of fixing the items or prices at which the stocks were sold and bought, they are competent, To render them, admissible for that purpose, it must be shown that the entries are original entries, proven to be such by the person who made them, in the usual course of business, made at the time the transactions they record took place, and are a true and correct record of such transactions. I think that such a foundation was laid in this case, and that, under the authorities, as it was the best evidence of which the case was susceptible, such entries were not hearsay, but were original evidence, and therefore admissible for the purpose for which they were introduced. Bank v. Brown, 165 N. Y. 216, 59 N. E. I, 53 L. R. A. 513; Mayor, etc., of City of New York v. Second Ave. R. Co., 102 N. Y. 572, 7 N. E. 905, 55 Am. Rep; 839.
I dissent, therefore, from the conclusion of the majority of the court, thinking, as I do, that where there was a virtual admission of the transactions having occurred, and all that was required from the books was a definite statement of the prices at which the stock was sold and bought, it was competent, because it was the best evidence of which the case was susceptible, to permit resort to the books for the purpose of ascertaining such prices.