Grant

This action was filed May 26, 1923. The complaint alleged that within four years last past defendants became indebted to Benjamin B. Tuttle, who died November 29, 1921, in the sum of $2,000 upon an open book account for moneys loaned to defendants. Defendants denied the loan, alleged a gift, and set up the statute of frauds.

Plaintiff’s proof consisted of offering in evidence a memorandum-book in the form of a diary ruled horizontally into spaces with printed dates. On the page thereof headed “April, 1920,” and in the space dated “16 Fri.” is found the following entry in the handwriting of the plaintiff’s testator: “16 Fri. Loaned Mr. and Mrs. H. Y. Gladstone 1,800.00 to pay on a new house purchased by them the amount was to draw 6 pr ct ints. 183 Del Mar St. is the no. I also loaned Mr. H. Y. Gladstone 200—for the purpose buying this same house, making in all 2,000 dollars to draw 6 pr ct.” Upon proof of the handwriting of the deceased, this book was received in evidence subject to objections as to its sufficiency and as to the sufficiency of its preliminary proof.

The defendants’ testimony was uficontradicted and was to the effect that the money was given and received as an…