36 § 2793. Books and records as evidence-As best evidence. Where written records are kept by a corporation, not only may such. records be used to show the acts and transactions of the corporation but they should be used to establish such matters 37 unless the original records are lost or inaccessible,38 or are incomplete,39 as the original books and records of a private corporation, when properly authenticated, are the best evidence of its acts, resolutions, and proceedings.40 This has been held to be the rule where it was sought to prove the 36 In re Mandelbaum, 80 N. Y. Misc. 475, 141 N. Y. Supp. 319. 37 Childs v. Ponder, 117 Ga. 553, 43 S. E. 986. See 2796, infra. 38 See § 2795, infra. 39 See 2796, infra. Owings v. Speed, 5 Wheat. 420, 5 L. Ed. 124. 40 United States. Lloyd v. Supreme Lodge, K. of P., 98 Fed. 66; Prentiss Tool & Supply Co. v. Godchaux, 66 Fed. 234. Alabama. Booth v. Dexter Steam Fire Engine Co., 118 Ala. 369, 24 So. 405. California. Boggs v. Lakeport Agriculture Ass'n, 111 Cal. 354, 43 Pac. 1106; Nixon v. Goodwin, 3 Cal. App. 358, 85 Pac. 169. Connecticut. Hurd v. Hotchkiss, 72 Conn. 472, 45 Atl. 11. Idaho. Just v. Idaho Canal & Improvement Co., 16 Idaho 639, 133 Am. St. Rep. 140, 102 Pac. 381. Illinois. See Mullanphy Sav. Bank v. Schott, 135 Ill. 655, 25 Am. St. Rep. 401, 26 N. E. 640, aff 'g 34 Ill. App. 500. Contents of minutes must be proved by minute book or duly certified copy thereof (J. & A. Ann. St. ¶5532). Central Elec. Co. v. Sprague Elec. Co., 120 Fed. 925. Indiana. Masons' Union Life Ins. Ass'n v. Brockman, 20 Ind. App. 206, 50 N. E. 493. Kentucky. Clary v. Com., 163 Ky. 48, 173 S. W. 171; Boyd's Ex'r v. First Nat. Bank of Williamsburg, Kentucky, 32 Ky. L. Rep. 1323, 108 S. W. 360; White Chimney & S. C. Turnpike Road Co. v. McMahan, 21 Ky. L. Rep. 41, 50 S. W. 836. Maine. Methodist Chapel Corporation v. Herrick, 25 Me. 354; Coffin v. Collins, 17 Me. 440. Maryland. Harrison v. Morton, 83 Md. 456, 35 Atl. 99. Massachusetts. Thayer v. Middlesex Mut. Fire Ins. Co., 10 Pick. 326. Michigan. People v. Oakland County Bank, 1 Dougl. 282. Minnesota. Heintzelman v. Druids' Relief Ass'n, 38 Minn. 138, 36 N. W. 100. Mississippi. Smith V. Natchez Steamboat Co., 1 How. 479. Nebraska. Yonda v. Royal Neighbors of America, 96 Neb. 730, 148 N. W. 926. New Jersey. Durbrow v. Hackensack Meadows Co., 77 N. J. L. 89, 71 Atl. 59. New York. Abernethy v. Society of Church of Puritans, 3 Daly 1; Clark Farmers' Woolen Mfg. Co., 15 Wend. 256. Rhode Island. Dennis v. Joslin Mfg. Co., 19 R. I. 666, 61 Am. St. Rep. 805, 36 Atl. 129. Tennessee. Page v. Knights & Ladies of America, 61 S. W. 1068. It has been pointed out by one textwriter of high authority that the record may be considered the act itself. Wigmore, Evidence, § 1074. Attention has also been called to the fact that minutes of a corporate meeting are a mere narrative of the 1 existence of a by-law, the contents of the book,42 or minutes,13 the provisions of a constitution.44 or When, it is sought merely to prove that a meeting was held, it is not important that the records of what transpired at the meeting should be produced.45 Statutory provisions requiring corporations to keep a record of their transactions or proceedings have been held to make such records the best evidence.46 The members of corporations affected by such provisions are held to enter impliedly into an agreement that the records, fairly kept and complete, shall be exclusive evidence of the corporate acts.47 Probably because of the inconvenience caused by the use of the original records and for similar reasons, statutes have been enacted, as will real action taken, in other wards, of matters resting in parol. Machen, Corporations, § 1124. 41 As to the necessity for and method of proving by-laws, see § 488. When it is sought to defeat the payment of a claim by reason of some provision in a by-law, the fact that the by-law exists must be established by the best obtainable evidence. Yonda v. Royal Neighbors of America, 96 Neb. 730, 148 N. W. 926. As against general denial, the best evidence as to adoption or existence of by-laws is the production of the original record duly authenticated by the testimony of the proper custodian. Yonda v. Royal Neighbors of America, 96 Neb. 730, 148 N. W. 926. 42 On a prosecution for embezzlement, books of a corporation are the best evidence as to what they contain, and a bookkeeper testifying as to such books should not be allowed to make any statement as to what they do or do not contain. Clary v. Com., 163 Ky. 48, 173 S. W. 171. Failure to enter a deposit on the books of a bank as a time deposit could be better shown and in a more competent manner by the books themselves. Boyd's Ex'r v. First Nat. Bank of Williamsburg, Kentucky, 32 Ky. L. Rep. 1323, 108 S. W. 360. reevi 43 If a resolution be correctly corded, the minutes afford best dence as to its contents. Durbrow v. Hackensack Meadows Co., 77 N. J. L. 89, 71 Atl. 59. 44 An offer to prove by a witness that under the constitution an insurance association a policyholder could change the beneficiary in his policy is properly refused, since best evidence, or the constitution itself, should have been introduced. Masons' Union Life Ins. Ass'n v. Brockman, 20 Ind. APP. 206, 50 N. E. 493. & 45 Ramsdell v. National Rivet Novelty Co., 104 Fed. 16. 46 Since Rev. Codes, § 2775 require corporations for profit to keep records are of their business, such records Am. St. Rep. 140, 102 Pac. 381. Kirby's Dig. § 944, providing that the clerk or secretary of a corporation shall keep a fair record of proIceedings in a book provided for that purpose, makes such record evidence of the proceeding. Beasely v. Mutual Aid Ass'n, 94 Ark. 499, 127 S. 47 Beasely v. Mutual Aid Ass'n, W. 94 be noted hereafter, providing for the proof of corporate acts by copies. of the records, which are held to be original evidence.48 § 2794. Compliance with statutory requisites as affecting admissibility. Various statutory requirements frequently exist as to corporate books and records, and must be complied with. But noncompliance does not necessarily operate to prevent the books and records from being admitted as evidence. Thus it has been held that articles of incorporation duly signed and acknowledged were admissible though not recorded as required by statute. The evidence, however, was for the purpose of rebutting a charge of bad faith as to organization.49 In another case a certificate of a corporate organization, although bearing no revenue stamp as required by the federal Act of 1898, was held properly admitted to show corporate existence, the ground being that in order to bar the instrument the failure to attach the stamp must have been shown to have been with intent to defraud the revenue law, and that such intent would not be presumed.5 1.50 § 2795. - Secondary evidence of corporate records or books. Where the original corporate records are lost, mislaid or destroyed, or are otherwise inaccessible, or where in a suit to which the corporation is a party, an adverse party makes a proper demand for the production of a book, which demand is not complied with, secondary evidence of the acts or resolutions therein recorded may be introduced.51 Usually this refers to copies of the records, either certified or sworn to, although such copies are sometimes referred to as original evidence,52 and to parol testimony.53 § 2796, Parol evidence of corporate acts. When action has been made a matter of record, the records or minutes are the best evidence, and failure to produce them must be explained and excused before parol or other secondary evidence can be introduced.54 Pur 48 See § 2797, infra. 49 Warren v. Syfers, 23 Ind. App. 167, 55 N. E. 103. 50 State v. Glucose Sugar Refining Co., 117 Iowa 524, 91 N. W. 794. 51 Fraternal Relief Ass'n v. Edwards, 9 Ga. App. 43, 70 S. E. 265; National Bank v. Navassa Phosphate Co., 56 Hun (N. Y.) 136, 8 N. Y. Supp. 929; Clark v. Farmers' Woolen Mfg. Co., 15 Wend. (N. Y.) 256; Ackerman v. Atlantic Coast Line R. Co., 83 S. C. 276, 65 S. E. 268; Dial v. Valley 54 United States. Blanton v. Kentucky Distilleries & Warehouse Co., 120 Fed. 318, 149 Fed. 31. California. Nixon v. Goodwin, 3 suant to this general rule, where better evidence is available, parol evidence has been held inadmissible to show the existence of a corporation, or its license to do business, 55 the liquidation of a corporation 56 or the merger of corporations,57 as well as the duties of officers.58 And in an action by a foreign corporation oral proof of the corporate Co. v. Collins, 29 Colo. 102, 67 Pac. 164. Connecticut. Hurd v. Hotchkiss, 72 Conn. 472, 45 Atl. 11. Georgia. Candell v. Athens Sav. Bank, 140 Ga. 713, 79 S. E. 776. Idaho. Corcoran v. Sonora Mining & Milling Co., 8 Idaho 651, 71 Pac. 127. Kansas. Beeler v. Highland University Co., 8 Kan. App. 89, 54 Pac. 295. Michigan. Ten Eyck v. Pontiac, O. & P. A. R. Co., 74 Mich. 226, 3 L. R. A. 378, 16 Am. St. Rep. 633, 41 N. W. 905. New Hampshire. Edgerly v. Emerson, 23 N. H. 555, 55 Am. Dec. 207. New York. National Bank v. Navassa Phosphate Co., 56 Hun 136, 8 N. Y. Supp. 929. Acts of the directors of a corporation can be shown only by their recorded vote. Nixon v. Goodwin, 3 Cal. App. 358, 85 Pac. 169; Hurd v. Hotchkiss, 72 Conn. 472, 45 Atl. 11. Before parol evidence can be introduced, the minutes should be produced or accounted for. Candell v. Athens Sav. Bank, 140 Ga. 713, 79 S. E. 776. Oral evidence of the contents of a resolution must be excluded where it is not shown that notice to produce the record was given and refused, or that the custodian has been subpoenaed and has failed to produce the writing. Tobin v. Roaring Creek & C. R. Co., 86 Fed. 1020. Where the minutes are lost, oral testimony is admissible to show the proceedings at the meeting. Blanton v. Kentucky Distilleries & Warehouse Co., 149 Fed. 31, 120 Fed. 318. 55 For a detailed consideration of this question, see §§ 425-427, supra. And see Pattison v. Gulf Bag Co., 116 La. 963, 114 Am. St. Rep. 570, 41 So. 224; State v. Merchant, 48 Wash. 69, 92 Pac. 890. On a prosecution for embezzlement, the fact of incorporation may be shown by parol, and record evidence is not necessary. Morrow v. Com., 157 Ky. 486, 163 S. W. 452. See also § 426. 56 Pattison v. Gulf Bag Co., 116 La. 963, 114 Am. St. Rep. 570, 41 So. 224. 57 Pattison v. Gulf Bag Co., 116 La. 963, 114 Am. St. Rep. 570, 41 So. 224. 58 Where by-laws specify the duties of the general manager, objection is properly sustained to a question asked of such officer as to what his duties are. Greene v. Hereford, 12 Ariz. 85, 95 Pac. 105. Where the constitution and by-laws of a society are in evidence it is incompetent for a witness to testify orally as to the duties of the committee and the advisory board. Chambers v. Great State Council, I. O. R. W. Va., 86 S. E. 467. M., Contra, statement by a witness in answer to an interrogatory in a deposition that he was the treasurer and manager of a corporation, party to the action, at a time embraced by the account on which suit was brought, was held not to constitute error, as against a claim that the corporate records only were competent to prove who held these offices. Empire Smel books, papers, and records, in the possession of the corporation outside the state, is not admissible in its behalf.59 It would seem that the general rule prohibiting the proof of corporate existence by parol evidence is subject to the qualification that such evidence is admissible where the corporate character is a mere collateral matter, not essential to the main question in issue.60 It has also been held that such action as the declaration of a dividend must be made matter of record, and cannot be proved by parol evidence in collateral suits between the corporation and its stockholders.61 The dedication of corporate property cannot be shown by the mere recollection of such alleged fact on the part of certain persons where no record thereof appears on the corporate books and the corporation has continued to pay taxes on and exercise control over the property.62 Under statutory provisions whereby certified or sworn copies of records are made original evidence, proof of such papers cannot be shown by oral testimony.63 ter Co. v. Gardiner, Worthen & Gross Co. (Ariz.), 85 Pac. 729. For a detailed treatment of the law relative to officers of corporations, see Chap. 42, supra. 59 See § 437, supra. See also Mandel v. Swan Land & Cattle Co., Ltd., 154 Ill. 177, 27 L. R. A. 313, 45 Am. St. Rep. 124, 40 N. E. 462, rev'g 51 Ill. App. 204. 60 State v. Rozeboom, 145 Iowa 620, 29 L. R. A. (N. S.) 37, 124 N. W. 783. 61 American Wire-Nail Co. v. Gedge, 96 Ky. 513, 16 Ky. L. Rep. 663, 29 S. W. 353; Dennis v. Joslin Mfg. Co., 19 R. I. 666, 61 Am. St. Rep. 805, 36 Atl. 129. See also the chapter on Stock and Stockholders, infra. If the record does not show a declaration of dividends, the stockholder may ask that it be corrected, or by mandamus compel the secretary to do his duty as recorder. Dennis v. Joslin Mfg. Co., 19 R. I. 666, 61 Am. St. Rep. 805, 36 Atl. 129. In an action by a trustee in bankruptcy to recover dividends paid by corporation, the account books, par IV Priv. Corp.-44 ticularly the ledger, are admissible to show the financial status of corporation when the dividends were paid. Wesp v. Muckle, 136 N. Y. App. Div. 241, 120 N. Y. Supp. 976: A general statement of the auditor that the company had not earned dividends is properly excepted to, as the best evidence is the books of ac count. Shelby v. New York Steam Co., 121 N. Y. Supp. 619. 62 Stacy v. Glen Ellyn Hotel & Springs Co., 223 Ill. 546, 8 L. R. A. (N. S.) 966, 79 N. E. 133. 63 Lloyd v. Supreme Lodge Knights of Pythias, 98 Fed. 66; Chicago, B. & Q. R. Co. v. Weber, 219 Ill. 372, 4 L. R. A. (N. S.) 272, 76 N. E. 489, rev'g 121 Ill. App. 455; Mandel v. Swan Land & Cattle Co., Ltd., 154 Ill. 177, 27 L. R. A. 313, 45 Am. St. Rep. 124, 40 N. E. 462, rev'g 51 Ill. App. 204. Where the approved mode of showing corporate existence is by the introduction of the original articles or a duly certified copy thereof, and no statute provides otherwise, proof by one having knowledge of the existence of the corporation, or even by general reputation, may be allowed. And |