Bursaw v. Pederson

• Decision Date: 29 November 1933
• Citation: 188 N.E. 233,284 Mass. 471
• Parties: BURSAW v. PEDERSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

284 Mass. 471

188 N.E. 233

BURSAW

v.PEDERSON.

Supreme Judicial Court of Massachusetts, Middlesex.

Nov. 29, 1933.

Exceptions from Superior Court, Middlesex County; Pinanski, Judge.

Action of contract by Henry W. Bursaw against John Pederson. A finding was made for plaintiff in the sum of $2,574.61 and interest. Plaintiff's motion for judgment was allowed. On defendant's exceptions.

Exceptions overruled.

F. B. Turner and K. A. Perry, both of Boston, for defendant.

L. G. Dennett, of Boston, for plaintiff.

PIERCE, Justice.

This is an action to recover upon an account annexed for the sale of gasoline, oil and motor accessories. The only items in dispute were those relating to gasoline, the defendant contending that the plaintiff did not deliver the amount of gasoline claimed. The case was referred to an auditor who filed a report in favor of the plaintiff. Each party filed a motion for judgment. The plaintiff's motion was allowed and the defendant duly excepted.

The auditor found the following facts: The plaintiff, in support of the items in the declaration, offered his ledger account showing charges against and credits to the defendant named in the account, together with the plaintiff's daily sales slips made out in duplicate by the drivers who made deliveries to the defendant. One copy of these slips had in each instance been left with the defendant and the other was turned in by the driver to the plaintiff's bookkeeper and entries in the ledger account were posted directly from such slips to the ledger. The sales slips in possession of the plaintiff were produced and offered as an exhibit. The auditor states that he made the preliminary finding required by G. L. (Ter. Ed.) c. 233, § 78, and admitted both slips and ledger account as exhibits. He further found that the defendant began buying his gasoline, oil and other supplies from the plaintiff sometime in the early twenties and continued so to do down to and including the month of September, 1928. (The plaintiff's writ is dated October 10, 1928.) The deliveries of gasoline by the plaintiff to the defendant were made by the plaintiff's drivers from a tank wagon into a tank owned by the defendant and located under ground on the defendant's premises. The method of ascertaining the number of gallons of gasoline delivered into the tank of the defendant was for the driver of the plaintiff's truck to insert a stick into the tank for the purpose of ascertaining the amount of gasoline in the tank prior to any new delivery; by means of certain marks on the stick the amount of gasoline could be estimated or computed by the driver and the tank would then be filled to its full capacity. The amount of gasoline in the tank before any new gasoline had been put in was deducted from the number five hundred and sixty-five (the capacity in gallons of the tank) and the balance was charged for by the plaintiff as the amount of gasoline delivered. The stick was not a sealed measure.

The report further discloses that shortly before April 4, 1928, the defendant became suspicious that he was not receiving the full amount of gasoline for which he was being charged; he, therefore, at some time after the action was brought caused an experiment to be conducted by a disinterested person, which is described as follows: A new stick was procured of substantially the same size and shape as that which had been used by the plaintiff. The tank was emptied in so far as the pump attached thereto would empty it, and the new stick was then inserted in the tank; this showed that there was an...