Abilheira v. Faria
| Decision Date | 17 May 1967 |
| Docket Number | No. 94,94 |
| Parties | Ellas Batista ABILHEIRA d.b.a. Batista Bakery v. Raymond R. FARIA d.b.a. Serv-Al Lunch. Appeal |
| Court | Rhode Island Supreme Court |
This is an action in assumpsit to recover for goods sold and delivered and on book account. The action was tried by a justice of the superior court sitting without a jury and resulted in a judgment for the plaintiff in the amount of $1,597.83 and costs. The case is in this court on the defendant's appeal therefrom.
It is not disputed that defendant, who operated a mobile canteen, had for some time purchased bakery products from plaintiff for resale in that business. There is evidence that for some time defendant had made weekly payments on this account but that in 1957 he fell behind in such payments until in 1958 plaintiff refused to supply him any further. Thereafter plaintiff instituted the instant civil action.
The defendant contends that error inhered in two rulings of the trial justice admitting into evidence certain oral testimony as to the amount of the debt. On one occasion the trial justice overruled defendant's objection to plaintiff's son testifying that the balance of the account was '* * * $1,126.00 and some change.' The other involved the denying of defendant's motion to strike plaintiff's testimony that the balance owed him by defendant was '$1,126 and some cents.' The defendant argues that the best evidence rule requires that this debt be proved by the introduction of the books of account maintained by the plaintiff and that the secondary evidence here offered to establish the content of the books of account was improperly admitted.
The plaintiff adduced evidence to show that, prior to instituting the instant suit, he had turned over all of the records relating to defendant's account to his attorney and that thereafter, prior to trial, his attorney died. There was evidence tending to establish that plaintiff, with present counsel, made an intensive examination of the files of the deceased counsel in an attempt to locate the records, but were unable to do so. The trial justice accepted this evidence as establishing a reason for the unavailability of the primary evidence in the form of records. The defendant does not appear to seriously challenge the explanation thus offered as justifying the resort to secondary evidence.
The defendant's objection to the admission of the oral testimony of plaintiff's son was based upon his contention that it was inadmissible as secondary evidence because the witness was without personal knowledge of all of the transactions which made up the account. The plaintiff's son had testified that he worked for his father in the bakery; that he frequently transacted business with defendant; that on many occasions he made up the sales slips reflecting such transactions; that he had occasionally entered them in the record; and that he was personally familiar with the balance due plaintiff from defendant. In our opinion, this constituted sufficient knowledge on the part of witness to qualify him to testify as to the balance contained in the missing writings.
In Schiffman v. Narragansett Hotel Inc., 86 R.I. 258, 134 A.2d 153, we noted our acceptance of the rule that secondary evidence will be admissible to prove the content of a writing when satisfactory proof is offered that the primary evidence has been lost or destroyed without fraud or fault on the part of the party seeking to adduce such secondary evidence. It does not appear that defendant disputes that this is the rule in this jurisdiction or that he questions that the proof of the loss of the primary evidence was insufficient to justify its acceptance by the trial justice.
What defendant really presses is his contention that the testimony of the witness was improperly admitted because the witness through whom it was adduced had not made all of the entries contained in the pertinent record and was without personal knowledge as to the account in its entirety. This is to argue, in our opinion, that the best evidence rule is to be applied as one of exclusion and is to be construed strictly, particularly with respect to...
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... ... Nugent v. City of East Providence, 103 R.I. 518, 238 A.2d 758; Abilheira v. Faria, 102 R.I. 214, 229 A.2d 758; New England Box & Barrel Co. v. Travelers Fire Ins. Co., 63 R.I. 315, 8 A.2d [107 R.I. 322] 805. No rule of ... ...
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