## Facts

- In October 1986, Cole Oil & Tire Company, Inc. (Cole) acquired Boss Oil’s accounts receivable.
- One acquired account was in Tommy Davis’s name and showed an outstanding balance of \$8,021.85 at the time of acquisition.
- Cole alleged Davis made payments totaling \$5,000, leaving \$3,021.85 due, and sued Davis on an open account to collect that amount.
- At trial, Cole offered: (1) a monthly statement prepared by Cole summarizing payments and the alleged remaining balance; (2) an adding-machine tape totaling the figures; and (3) fourteen Boss Oil sales invoices reflecting purchases between July and September 1986.
- The Boss Oil invoices contained irregularities: six were signed “Jerry” and marked paid, one was signed “Bobby Stuart” and marked paid, six were unsigned, and one contained an illegible signature.
- Cole’s president was the only witness. He could not identify the people who signed or stamped the invoices, could not explain the “paid” markings or other discrepancies, and admitted he had no personal knowledge of Boss Oil’s record-keeping practices.
- Over Davis’s objection, the trial court admitted the documents and entered judgment for Cole for \$3,021.85.
- Davis appealed, challenging the evidentiary foundation and the sufficiency of the proof.

## Issues

1. Whether Boss Oil’s invoices and related account documents were admissible as business records when Cole’s only witness lacked knowledge of how Boss Oil created and kept those records.
2. Whether, without competent admissible records establishing the charges, payments, and balance, Cole proved its open-account claim by a preponderance of the evidence.

## Decision

- The appellate court reversed the judgment for Cole and rendered judgment in favor of Davis.
- The court held Cole failed to establish a proper business-records foundation for Boss Oil’s invoices through the testimony of Cole’s president, who lacked knowledge of Boss Oil’s practices.
- Because the invoices were not competent evidence, Cole’s monthly statement and adding-machine tape (which depended on the invoices) could not supply the missing proof.
- Without admissible documentation supporting the claimed balance, Cole did not make the showing required to recover on an open account.

## Legal Principles

- In a suit on an open account, the plaintiff must first present competent evidence of the account’s correctness (charges, credits, and the balance) before any burden shifts to the defendant to show errors or additional credits.
- Business records are not admitted merely because they appear to be invoices or account forms; the proponent must present testimony (or other qualifying proof) that the records were made in the regular course of business, at or near the time of the events recorded, and in a trustworthy manner.
- When an assignee seeks to use a predecessor’s records, the assignee must still provide a qualified foundation witness with sufficient familiarity with the predecessor’s record-making and retention practices; ownership of the receivable does not by itself establish admissibility.
- A summary document or arithmetic tape cannot substitute for admissible underlying records when the summary’s accuracy depends on those underlying records.

## Conclusion

Because Cole’s only witness could not authenticate Boss Oil’s invoices as business records and could not explain invoice irregularities, the invoices were not competent evidence; without them, Cole’s summaries did not prove the correctness of the alleged open-account balance, so the appellate court reversed and rendered judgment for Davis.


Cole Oil & Tire Co. v. Davis, 567 So. 2d 122 (1990)