nishings were of a fixed and permanent nature or movable, and in this respect they were incorrect upon the question of value.

The fourth point urged in the brief of counsel is based upon the giving of the tenth paragraph of its instructions. "(10) Certain receipts have been introduced in evidence and testimony given in relation to them and to the payments it is elaimed they represent. You are instructed that the receipts in question are to be considered by you only as memoranda and exhibits in connection with the testimony relating to them, and not as the evidence of the parties who it is claimed gave them, to anything contained in them." Upon the trial in the court below a large number of receipts were offered in evidence, to which objections were made. There was considerable testimony offered as to the contents of many of these receipts. Those receipts were evidently offered to prove ex

insisted that this instruction practically directed the jury not to consider these receipts.

dence that the said Frank P. McClure or his assigns, the plaintiff, George K. Neher, erected an opera house upon the land referred to in the pleadings and furnished the same with chairs, scenery, and other articles of furniture and property necessary or proper for the conducting of a theater, and that the same was reasonably of the value of $30,000, then they should find a verdict in favor of the plaintiff, and assess his damages at such amount as they believe from the preponderance of the evidence the plaintiff sustained by the failure of the defendants to make good the title and deliver the deeds to the said lot, title to which so failed, as aforesaid." The use of the word "building" in connection with the word "theater" is quite significant. The word "opera" is very different in meaning from the words "opera house," in that the former may have no relation to the building in which it may be rendered. The word "theater" and "the-penditures upon the theater building. It is ater building" may have different meanings also, as a theater may mean a place where plays are being produced, whereas a theater building may be such whether plays are produced therein or not. In the case of Bell v. Mahan, 121 Pa. 225, 15 Atl. 523, 1 L. R. A. 364, 6 Am. St. Rep. 786, the court said: "The opera house and theater alike comprehend the stage, proscenium, boxes, orchestra pit, or parquet, and the galleries. The scenic representation are of the same general character, and the stage machinery and decorations of the same order." From this language it would appear that the court intended to draw a line between the building and its necessary fixtures, and the movable articles, similar to that drawn by the court below in the eighth instruction. The use of the word "building" in the agreement seems to necessitate this construction, and not that which is presented in appellant's refused instruction. The "piano, furniture, carpets, and similar articles, movable and practically as well adapted to use elsewhere" cannot be said to be a necessary part of a theater building. Therefore the court's instructions were correct, and there was no error committed by the refusal to give appellant's second instruction.

These receipts were certainly not the best evidence that the articles for which they were supposed to represent payment were used in the construction of that building and formed a legitimate part of the $30,000. The instruction of the court informed the jury that these receipts were competent in connection with the testimony as to their contents, and not as a substitute for the testimony of the witness.

In this particular case, even if the money was paid as the receipts indicate, in the absence of some proof connecting them with this building, it would have been improper for the jury to consider them as part of the claim of $30,000. The jury was instructed to consider those supported by such testimony, which was a proper direction, upon the issues in this case.

Numerous other assignments of error are found in the record, but as they have neither been considered in the briefs of counsel, nor made to specifically indicate the ground of error relied upon, they will not be further considered, as it has been repeatedly held by this court that assignments of error must be specified. Schofield v. Territory, 9 N. M. 526, 56 Pac. 306; Cevada v. Miera, 10 N. M. The remaining instructions requested by 62, 61 Pac. 125; Pearce v. Strickler, 9 N. M. the appellant in the court below and refused | 467, 54 Pac. 748. The cause was submitted substantially directed the jury to construe to the jury under instructions fairly coverthe contract according to the intention of the ing the issues in the case, and, while the tiparties and the circumstances surrounding tle to the lot sued for had failed, the jury its execution, and, further, to determine returned a verdict for the defendants, apwhether the theater building with its fur- pellees in this court, which necessarily was niture and appointments were reasonably a finding that the appellant had failed to worth $30,000 when completed in 1899 and construct within a reasonable time a modern 1900. This being a written agreement, it was $30,000 theater building, the consideration for the court to construe, and not for the for the agreement by virtue of which he was jury. The court did construe it in para- to obtain title to the lost. Under this vergraphs Nos. 7 and 8, quoted above, and we dict, the appellant never became entitled to think correctly. The requested instructions the ownership of the property conveyed by in referring to furniture and appointments ig- the deeds in escrow, and it was immaterial nore the distinction drawn in the court's to him whether the title failed or not. No instructions as to whether or not the fur-right of action for damages for failure of

title existed in him, for which a judgment [one having knowledge of the business so as to could properly be rendered. be able of his own knowledge to testify as to it. [Ed. Note.-For other cases, see Evidence,

The judgment of the court below is affirm-Cent. Dig. § 1454; Dec. Dig. § 354.*

ed with costs. It is so ordered.

POPE, C. J., and PARKER, MECHEM, and WRIGHT, JJ., concur. ABBOTT, J., did not participate in this decision, having tried the case below.

(15 N. M. 258)

RADCLIFFE v. CHAVEZ. (Supreme Court of New Mexico. Jan. 6, 1910. Rehearing Denied Sept. 1, 1910.)

(Syllabus by the Court.)

TRIAL BY

1. APPEAL AND ERROR (§ 219*)
COURT-FINDINGS-REQUEST.
Failure of the trial court to make special
findings as provided by Comp. Laws, § 2999, is
not a tenable assignment of error, where no re-
quest for such findings was made and denied
in the court below. Bank v. Baird, 13 N. M.
431, 85 Pac. 970, followed.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 1315-1324; Dec. Dig. 219.*]

2. TRIAL (§ 96*)-RECEPTION OF EVIDENCEMOTIONS TO STRIKE OUT EVIDENCE ADMIS

SIBLE IN PART.

A motion to strike out the whole answer

of a witness, where part of the answer is good, is properly denied.

[Ed. Note. For other cases, see Trial, Cent. Dig. 248; Dec. Dig. § 96.*1

3. APPEAL AND ERROR (§ 1054*)-REVIEWPRESUMPTIONS - CONSIDERATION OF TESTI

MONY.

In cases tried before the court, it will be presumed that the court ultimately disregarded inadmissible testimony, and the erroneous admission of testimony will afford no ground of error. unless it is apparent that the court considered such testimony in deciding the case.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4185, 4186; Dec. Dig. § 1054.*]

4. EVIDENCE (§ 376*) DOCUMENTARY EVIDENCE- BOOKS OF ACCOUNT-PRELIMINARY EVIDENCE.

For other definitions, see Words and Phrases. vol. 2, pp. 1224-1229.]

7. EXECUTORS AND ADMINISTRATORS (§ 221*)— CLAIMS AGAINST ESTATE-EVIDENCE-CORROBORATION OF CLAIMANT.

Books of account shown to conform to the requirements of Comp. Laws, § 3031, are admissible, and, when so admitted in a suit against an administrator, may constitute "other material evidence" corroborating the claimant as required by Comp. Laws, § 3021.

[Ed. Note.-For other cases, see Executors and Administrators, Dec. Dig. § 221.*] 8. EXECUTORS AND ADMINISTRATORS (§ 267*)— ACCOUNTS-INTEREST.

Under Comp. Laws, § 2550, interest runs on an open account against the estate of a deceased person beginning six months after the date of the last item.

[Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. §§ 1032-1043; Dec. Dig. § 267.*]

(Additional Syllabus by Editorial Staff.) 9. Words AND PHRASES-"CorroboRATING EVIDENCE."

"Corroborating evidence" is such evidence as tends in some degree of its own strength and independently to support some essential allegation or issue raised by the pleadings testified to by the witness whose evidence is sought to be corroborated, which allegations or issue, if unsupported, would be fatal to the case, and such corroborating evidence must of itself, without the aid of any other evidence, exhibit its corroborative character by pointing with reasonable certainty to the allegation or issue it supports.

[Ed. Note.-For other definitions, see Words and Phrases, vol. 2, pp. 1627-1628.]

Appeal from District Court, Valencia County; before Justice Ira A. Abbott.

Action by William D. Radcliffe against Jose E. Chavez, administrator. From a judgment for plaintiff, defendant appeals. Affirmed.

Frank W. Clancy, for appellant. Felix H. Lester, for appellee.

Under Comp. Laws, § 3031, requiring, as a prerequisite to receiving books of account, proof by customers that the party usually kept correct books, it is sufficient if it be shown by POPE, J. The appellee, Radcliffe, filed an customers that during a period of years they itemized claim in the probate court of Valenhad always found their accounts as tendered cia county against the estate of one Chavez, correct, coupled with testimony that such accounts were taken from the books in question; deceased, for services as physician from April it not being essential that such customers shall 2, 1904, to April 10, 1905, the account aggrehave actually examined such books and compar-gating $1,410. The probate court allowed ed their accounts with them.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 1628-1646; Dec. Dig. § 376.*] 5. EVIDENCE (§ 354*) DOCUMENTARY EVIDENCE-BOOKS OF ACCOUNT.

Under Comp. Laws, § 3031, admitting books of account where the party kept no clerk, the fact that a physician's wife from time to time made entries in such books from his dictation did not constitute her a clerk so as to render the books inadmissible.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. § 1454; Dec. Dig. § 354.*] 6. EVIDENCE (§ 354*)

DOCUMENTARY, EVI-
DENCE-BOOKS OF ACCOUNT "CLERK."
The word "clerk," as used in the statute,
implies more than a mere amanuensis. It means

$472. Upon appeal to the district court by Dr. Radcliffe, the cause was tried before the court and a judgment rendered for $1,047.35. From that judgment an appeal is prosecuted to this court by the administrator.

The assignments of error are numerous, but most of them may be briefly disposed of.

It is urged that the court erred in failing to make findings of fact and conclusions of law as provided by section 2999, Comp. Laws. We have recently held, however, in Bank of Commerce v. Baird Mining Company, 13 N. M. 431, 85 Pac. 970, that such failure is not available as error where such findings are

not specially requested, or the omission to tiff that, while these books were ledgers and make them called to the attention of the the books marked ‘A' and 'B' were his original court by some appropriate motion. In the present case, no such request was made, and the administrator must be assumed, therefore, to have acquiesced in the sufficiency of the general finding embodied in the judgment. We entertain no doubt that, had the omission been called to the attention of the trial judge, he would have made findings. We do not, however, consider it sound practice that complaint of such omission should be made in the first instance in this court, necessitating a remanding of the case when this could have been obviated by timely application in the court below.

memorandum books, yet in part the entries in the ledgers were original entries made there for the first time, and to that extent they might be considered books of original entries and admissible in evidence, if otherwise competent under the statute." Two respects are suggested, however, in which it is said these books fall short of the statutory requirements to render them admissible: First, in that there is no proof by appellee's customers that he usually kept correct books; and, second, it is not shown that he kept no clerk, or else that the clerk was dead or inaccessible. The contention is, in short, that the third and first requirements of Comp. Laws, § 3031, have not been met. That section is as follows: "Hereafter in the trial of civil causes in the courts of this territory, the books of account of any merchant, shopkeeper, physician, blacksmith or other person doing a regular business and keeping daily entries thereof, may be admitted in evi

It is said that the court erred in refusing to strike out the answer of the witness Emma Radcliffe, who, in response to a question as to what she knew as to Dr. Radcliffe's having attended the deceased, said: "Why I know of his earning the fee and seeing the buggy stop at the house which I could see from our house; also making a charge on the books." At least so much of the answer as refers to the doc-dence as proof of such accounts upon the foltor's buggy stopping at the house of deceased was competent evidence as corroborative of the claim that he visited deceased professionally. A motion directed against a whole answer, part of which is good, is properly overruled.

A like observation applies to an answer of the witness Wittwer, given in response to the question as to whether he knew of his own knowledge of Dr. Radcliffe's refusing to leave during the last month of the illness of de ceased, to which he replied: "Yes, sir; I could not give any specified date, but I know Dr. Radcliffe told me personally that he could not leave, and also specified that it was on account of Felipe Chavez." Upon objection to the whole answer upon the ground that it was incompetent and hearsay the court ruled: "A part of it is hearsay." From this it is evident that the court disregarded the latter portion of the answer as hearsay in rendering his decision, so that a failure to strike out the whole answer was not error, and, even if erroneous, was not prejudicial. It is a familiar rule of this court, applicable to each of the last two assignments of error, that in cases tried before the court the erroneous admission of testimony will afford no ground for reversal, unless it is apparent that the court considered such testimony in deciding the case. Lynch v. Grayson, 5 N. M. 487, 508, 25 Pac. 992; s. c. 163 U. S. 468, 16 Sup. Ct. 1064, 41 L. Ed. 230.

lowing conditions: First. That he kept no clerk, or else the clerk is dead or inaccessible. Second. Upon proof, the party's oath being sufficient that the book tendered is the book of original entries. Third. Upon proof, by his customers, that he usually kept correct books. Fourth. Upon inspection by the court to see if the books are free from any suspicion of fraud."

This section has been the subject of consideration by this court in a number of cases. In Price v. Garland, 3 N. M. (Gild.) 505, 6 Pac. 472, certain books of account were not received in evidence because the proof did not measure up to this statute. In Byerts v. Robinson, 9 N. M. 427, 54 Pac. 932, it was held that section 3031 supersedes the common law, and that books of account cannot be received unless the statutory requirements are first complied with. In McKenzie v. King, 14 N. M. 375, 93 Pac. 703, it was held by this court, diverging from Byerts v. Robinson, that section 3031 supplemented, but did not supersede, the common-law rule, and that a book kept by a clerk, who testifies to having made the entries, is admissible without the proof required under section 3031. Appellee contends that the books offered below were properly received, if not under section 3031, then under the doctrine of McKenzie v. King. This leads us to determine whether the preliminary proof was sufficient. First, as to the proof by customIt is further said that the court erred in ers. Two witnesses-Raff and Gerpheideadmitting in evidence the claimant's books of testified to appellee's having been their phyaccount marked "C" and "D." The testimony sician during a long period of years, and showed that the initial memorandum of pro- that his statements of account as rendered to fessional visits made was in two physician's them had always been correct. The admispocket day books, which were received in evi- sion of the testimony of these two witnesses dence as exhibits A and B. These latter, is also assigned independently as error. We however, while recording all the visits, fail- think, however, that it was properly receiv ed after a certain date to record the charges ed, and that, in connection with the testifor such visits. As conceded by appellant's mony of appellee that his bills were made counsel in his brief, "it was shown by plain- | from this ledger, it was sufficient to show

the correctness of his books. While it is true the statute. In that case it was said: "The that the customers do not in so many words rule excluding books of account kept by a testify that his books were, generally speak-party who keeps a clerk applies only where ing, kept correctly, they do testify that their there is an employé who has something to do accounts-which appellee testified came from with and has knowledge generally of the the books were uniformly correct. It would business of his employer as to goods sold or be an unreasonable construction of the stat- work done so that he can testify on the subute to hold that the customer, before he could ject." So, also, in Smith v. Smith, 163 N. Y. testify, must have inspected the books, and 168, 57 N. E. 300, 52 L. R. A. 545 (with full be prepared to testify to their general accura- note), it was shown that plaintiff's wife kept cy. The character of the books may be de- his books, making the entries therein from termined by their results. Where, therefore, memorandum furnished by him as made aftas here, two patients come in and testify that er the delivery of the coal. The court says: their accounts as presented were uniformly "Of course, the plaintiff's wife cannot be correct, and where as here it is shown that claimed to be a clerk within the meaning of such accounts were drawn from the books in the rule. The clerk so intended means one question, the law infers from the treatment who has something to do with, and had knowlof the two a like treatment of the remainder, edge generally of, the business of his emand considers the verity of the books estab-ployer, and who would be enabled to testify lished. We are not unaware that there are upon the subject of the goods sold." To the cases cited as holding to a stricter rule. Most same effect are the cases cited in the notes to of them are mentioned in the note to 2 Ency. this case. 52 L. R. A. 571. Without recourse of Evidence, 632. An examination of these to the doctrine of McKenzie v. King, we hold, will show, however, that, with the exception therefore, that under our statute the books of the New York decisions, the cases do not were not objectionable upon either of the sustain the text. As to the New York cases, grounds urged, and were properly received in they will be found to be from the interme- evidence. diate courts of that state, and their declaration of the rule is different from that embodied in our Comp. Laws, § 3031, which latter is, of course, in this jurisdiction controlling. We hold, therefore, that there was sufficient proof to justify the trial judge in his finding that appellee's books were usually kept correctly.

But it is further urged that appellee kept a clerk, and therefore section 3031 does not apply. The testimony on this point is that Dr. Radcliffe was accustomed to transfer to his ledger-usually at the close of each day's work-the charges for the various visits made, as shown by his pocket memorandum book. His wife often acted as his amanuensis in making these entries. She had no knowledge of the visits nor the charges (save as he gave them to her), either from memorandum or memory. We are of opinion that this did not make her his clerk within the meaning of the law. Statutes of the nature of our section 3031 were passed at an early day to relieve cases from the hardship of the common-law rule that no party to a cause could testify. By allowing the party's book to speak for him-when these were shown to be properly kept-failure or justice was avoided. Where a clerk was kept, however, the necessity for the rule failed, and thus with it the rule, since the clerk, if not dead or inaccessible, could, not being a party, give the necessary proof. But the clerk here contemplated was one having actual knowledge of the sales and the business and who by virtue of that fact could testify of his own knowledge to the correctness of the accounts. It was never intended to include a mere amanuensis. Thus in McGoldrick v. Traphagen, 88 N. Y. 334, it was held that a mere book

It is further and chiefly contended that the court erred in rendering judgment for the appellee because, his claim being one against an administrator, there could be under Comp. Laws, § 3021, recovery only where the testimony of the claimant "is corroborated by some other material evidence." It is contended that such corroborating evidence was absent. In determining this matter we accept as expressing the doctrine of this court the language used in Gildersleeve v. Atkin son, 6 N. M. 260, 27 Pac. 480, and reiterated in Byerts v. Robinson, 9 N. M. 427, 432, 54 Pac. 932, 933, as follows: "Corroborating evidence is such evidence as tends in some degree of its own strength and independently to support some essential allegation or issue raised by the pleadings testified to by the witness whose evidence is sought to be corroborated, which allegations or issue, if unsupported, would be fatal to the case, and such corroborating evidence must of itself without the aid of any other evidence exhibit its corroborative character by pointing with reasonable certainty to the allegation or issue which it supports. Such evidence will not be material, unless the evidence sought to be corroborated itself supports the allegation or point in issue."

Within the rule just stated, was the plaintiff's testimony corroborated by other material evidence? This involves an analysis of the account sued on. This was composed of several classes of items. There were (1) 167 visits for which there was a charge of $5 per visit. In addition, there were (2) extra charges for some 16 ordinary examinations of urine at $5 each; (3) for some five microscopic examinations-necessitating trips to Albuquerque-extra charges of $25 each; (4)

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes