Berwin v. Levenson
| Decision Date | 31 March 1942 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | MARKS BERWIN, administrator, v. JOSEPH M. LEVENSON& others. |
November 12, 1941.
Present: FIELD, C.
J., DONAHUE, QUA DOLAN, & RONAN, JJ.
Contract, What constitutes, Account stated. Evidence, Declaration of deceased person, Admitted without objection, Relevancy and materiality. Practice, Civil, Variance. Limitations, Statute of.
Statements in writing, made by a creditor upon his personal knowledge, in good faith and before the commencement of an action against his alleged debtor, to the effect that it was "mutually understood and agreed" between them that a certain amount was due him, were essentially statements, and not mere conclusions, of fact and after his death were competent evidence in such action under G. L. (Ter. Ed.) c. 233 Section
65.
A statement in writing by a creditor that "by mutual agreement with" his debtor a certain sum was "the amount due" him, after the creditor's death was competent evidence under G. L. (Ter. Ed.) c. 233, Section 65, upon proper preliminary findings by the trial judge, although in the same statement it was said that a part of the sum mentioned "is a moral obligation."
No reversible error appeared, at the trial after the death of a creditor of an action upon an account stated, in the admission in evidence of entries in a diary, on slips of paper and in a day book in an abbreviated and fragmentary form and pertaining to transactions between the parties before the time of their alleged accounting together, where the judge instructed the jury that the entries were competent "purely as a background" and as bearing upon whether there was "reason for an accounting," but "not as to the truth of any figure there."
An exception to the denial of a motion, made at the conclusion of the direct examination of a witness, to strike out testimony of the witness to which no objection previously had been made, must be overruled.
Evidence that there had been transactions between an alleged creditor and three debtors as a result of which monetary charges and credits had arisen between them and a balance was due the creditor; and that the creditor and the debtors had agreed to the amount of the balance due, warranted a finding of an account stated in the agreed sum between the parties.
It is not necessary to the finding of an account stated that there be items of charge by each party which can be set off; the items may be all by one party against the other. Under G. L. (Ter. Ed.) c 260, Section 14, an indebtedness underlying an account stated was revived as against the statute of limitations by a part payment by the debtor within six years before the commencement of an action upon the account stated, and the action was not barred although there was no writing signed by the debtor evidencing the account stated; Section 13 of c. 260 was not applicable.
A motion for the ordering of a verdict for the defendant with a reference to the pleadings in an action upon an account stated where specifications had been filed by the plaintiff in a separate document after the filing of the declaration was not enough without more to call to the attention of the trial judge a variance between the specified particulars and the evidence.
In an action upon an account stated, refusal to give in terms a requested ruling as to the necessity of a preexisting indebtedness between the parties disclosed no error in view of the instructions given to that effect. An account stated may be based upon a single item of actual indebtedness.
A finding for the plaintiff upon an account stated was warranted although some of the items entering into the account were originally debts of a third party, where there was evidence that the defendant legally had assumed such debts before the account was stated.
CONTRACT. Writ in the Superior Court dated May 24, 1937. The case was tried before Brogna, J. There was a verdict for the plaintiff in the sum of $14,500. The defendants alleged exceptions.
H. Bergson, (P.
Bergson & H. C. Kagan with him,) for the defendants.
L. Brown, (W.
J. Barry & R.
H. Field with him,) for the plaintiff.
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, on 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, Section 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, Section 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: 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 , 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, 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...
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