Berwin v. Levenson

Decision Date31 March 1942
PartiesBERWIN v. LEVENSON et al.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

Exceptions from Superior Court, Suffolk County; Brogna, Judge.

Action by Marks Berwin, administrator of the estate of William Berwin, deceased, against Joseph M. Levenson and others to recover a sum due on an accounting. Verdict for plaintiff for $14,500 and defendants took exceptions.

Exceptions overruled.

Before FIELD, C. J., and DONAHUE, QUA, DOLAN, and RONAN, JJ.

Larue Brown, R. H. Field and W. J. Barry, all of Boston, for plaintiff.

H. Bergson, P. Bergson, and H. C. Kagan, all of Boston, for defendant.

QUA, Justice.

The plaintiff, as administrator of the estate of William Berwin, declared against three defendants, Joseph M. Levenson, Max L. Levenson, and Nathan Thomson, for the sum of $12,750 found due by the parties upon an accounting together on June 9, 1931, with interest. A bill of particulars filed by the plaintiff indicates that charges entering into the alleged account stated arose out of negotiations with the United States Government, securing the purchase of surplus war materials ‘in accordance with the instructions of the defendants, and after’ a great many dates in the years 1926, 1927, 1928, and 1929.

The defendant Thomson died during the pendency of the action, and the bill of exceptions states that the action proceeded ‘by force of’ G.L. (Ter.Ed.) c. 228, § 7, against the remaining defendants, the two Levensons.

Much of the evidence consisted of declarations in writing by the plaintiff's intestate admitted by the judge under G.L.(Ter.Ed.) c. 233, § 65, as declarations of a deceased person made in good faith before the commencement of the action upon the personal knowledge of the declarant. Oral declarations of the intestate and of the deceased defendant Thomson were also admitted under the statute. It appears from the bill of exceptions that the judge made the required preliminary investigation as to knowledge and good faith of the declarants and as to the declarations being made before the commencement of the action. The competency of this evidence is challenged by the surviving defendants.

Exhibit 1 was ‘on the letterhead’ of the plaintiff's intestate. It was dated August 1, 1932, and was signed by the intestate. The part that was read to the jury was as follows: ‘On June 9, 1931, I called at the office of Levenson & Levenson, in the Old South Building. I talked with Joseph M. Levenson relative to the amount due me on that date by said Levenson and Thomson and M. L. Levenson. They all three assumed the obligation of Thomson & Kelley Company and the International Linter Company, and we had an understanding with them some time previous as to the amount agreed in settlement, and the purpose of my talk on June 9, 1931, was to ascertain the amount due me on that date, as payments had been made to me previously on account of the original settlement. It was mutually understood and agreed that $12,750 was the amount due me on June 9, 1931. J. M. Levenson agreed to pay me in full by October 15, 1931. Since October 3, 1931, I have received on account $1,100, leaving amount due me this day $11,650 less $100 paid me July 11, 1932 by N. Thomson, leaving amount due me this day $11,550. I have received check from N. Thomson from time to time in payment of expenses received for traveling and so forth, but no payment has been paid to me on the principal other than the amounts stated above. I have no written evidence of the amount due me by N. Thomson, J. M. Levenson, and M. L. Levenson. I have tried to get something in writing but they have always given some excuse for not giving it to me although verbally they have not denied the obligation.’ This was signed by the plaintiff's intestate, William Berwin. Below the signature was written, ‘Due me June 16, 1933, $9,788.68, William Berwin.’

It was agreed at the trial that the three original defendants were the principal officers and directors of the two corporations named in this exhibit and that one of the corporations was dissolved in 1928 and the other enjoined from doing business in April, 1931.

There was no error in admitting this exhibit under the statute. The objection urged to its admissibility as distinguished from its bearing and effect is that it contains conclusions and is not limited to statements of fact. But essentially the statements could be found to be statements of fact. The statute has always been liberally construed as remedial legislation designed to mitigate under proper safeguards the hardship often resulting from the loss of evidence by reason of death. In the recent case of Kulchinsky v. Segal, 307 Mass. 571, 30 N.E.2d 830, evidence of declarations of the plaintiff's intestate ‘that the defendant owed him more than $500, had paid $5 on account, and had promised to pay by instalments' was held competent. In that decision the underlying principles were fully discussed, with the citation of many illustrations. The parts of Exhibit 1 previously quoted, in so far as they were of any consequence, were properly admitted under the authority of that case.

This entry from a diary of the plaintiff's intestate was admitted, ‘Boston, June 9, 1931. By mutual agreement with M. L. Levenson and J. M. Levenson, the amount due me today is $12,750, of which $5,000 is a moral obligation of Joseph M. Levenson.’ This entry bears the same date as that of the interview of which the deceased wrote in Exhibit 1. Construing the two entries together, the judge could find that the first assertion in the entry from the diary was a statement of fact. The statement that part of the sum mentioned was ‘a moral obligation’ of only one of the defendants was not harmful to the defendants.

Another entry in the diary of the plaintiff's intestate, dated October 3, 1931, referred to a promise to pay by J. M. Levenson and a promise to give the deceased a letter ‘guaranteeing my account, viz: $12,750.’ Various other entries by the plaintiff's intestate in his diary, some entries on ‘a paper’ and on two yellow slips, and an entry by him in a‘day book’ were admitted. These bear dates from June 13, 1929, to November 1, 1930. They are in an abbreviated and fragmentary from. Much of the matter contained in them is colorless and harmless. Parts of them have some tendency to show that during the period covered there were business and financial transactions of some kind involving charges and credits between or among the plaintiff's intestate, the Levensons, Thomson, and Thomson & Kelley Company. The exceptions are directed to each entry in the diary and to each ‘yellow slip’ as a whole, no separate objection, so far as appears, having been made to any particular parts. See O'Driscoll v. Lynn & Boston Railroad Co., 180 Mass. 187, 189, 62 N.E. 3. The judge instructed the jury in substance that this evidence was competent ‘purely as a background’ and as bearing upon whether there was ‘reason for an accounting’ between the parties but ‘not as to the truth of any figure there.’ In view of this instruction, and having reference of the evidence as a whole, we think that there was no reversible error in the admission of these entries.

One Isaacs, called by the plaintiff, testified that on two occasions in June or July, 1931, and once again several months later, at the office of the Levensons (the defendant Thomson not being present), he heard the plaintiff's intestate demand money of the two Levensons and threaten suit, and heard ‘Joe’ Levenson, and on one of the occasions both of the Levensons, say that they would pay the plaintiff's intestate, that they would ‘guarantee’ to pay him. It does not appear that any objection was made to this evidence until after the conclusion of the direct examination of the witness, when the defendants ‘moved to strike out the witness's testimony’ as immaterial. We need not discuss the admissibility of this evidence, since in any event the objection was not seasonably made. Commonwealth v. Valentino, 257 Mass. 419, 420, 154 N.E. 179;Crowley v. Swanson, 283 Mass. 82, 85, 186 N.E. 46.

One Coleman testified without objection that he was in the office of the plaintiff's intestate in the early summer of 1931, when the intestate came in with Isaacs and said that he had got the Levensons to agree to pay him after threatening to sue them; that he had ‘made a settlement’; that ‘the settlement was $12,750’; and that the Levensons had agreed to pay him that sum within four or five months.

The plaintiff himself testified that after the death of his intestate he had shown Exhibit 1 to the defendant Thomson, and that Thomson said ‘the settlement of $12,750 was correct’ and would have been paid long before if it had not been that some money coming to the Levensons had been deposited by them in a bank and the bank had applied it to notes the Levensons owed ‘personally’; that he (Thomson) and the Levensons ‘would pay it’; and that Thomson and the Levensons ‘did considerable business in buying merchandies from the government.’ For reasons previously stated there was no reversible error in admitting this testimony.

There was no error in denying the defendants' motion for a directed verdict. The evidence, the substance of which has already been stated, was unsatisfactory and vague, and neither of the surviving defendants took the stand to clarify it. But in spite of this the evidence had some tendency to show that there had been transactions between the plaintiff's intestate on the one hand and the Levensons and Thomson on the other hand as the result of which monetary charges and credits had arisen between the parties and a balance was due; that the plaintiff's intestate and the Levensons had agreed, after discussion, that the amount of that balance was $12,750; and that Thomson, even if not present at each interview, had also accepted the accounting, agreed to the balance due and paid $100 on account of it. The essential elements of an...

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3 cases
  • Old Colony Trust Co. v. Shaw
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • December 8, 1964
    ...Shamgochian v. Drigotas, 343 Mass. 139, 177 N.E.2d 580. A case bearing considerable resemblance to the case at bar is Berwin v. Levenson, 311 Mass. 239, 42 N.E.2d 568. There the plaintiff's declaration, as amplified by a bill of particulars, alleged that an account arose out of the purchase......
  • Berwin v. Levenson
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • March 31, 1942
  • Supreme Coat Co. v. Lyon Warehouse & Distributing Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • April 7, 1955
    ...do not appear to have been based on the pleadings. Weiner v. D. A. Schulte, Inc., 275 Mass. 379, 385, 176 N.E. 114; Berwin v. Levenson, 311 Mass. 239, 246, 42 N.E.2d 568; Kilham v. O'Connell, 315 Mass. 721, 723, 54 N.E.2d 181; See Leigh v. Rule, 331 Mass. 664, 121 N.E.2d Finally the defenda......

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