Central Soya Co. v. Henderson, No. 10690

• Court: United States State Supreme Court of Rhode Island
• Writing for the Court: ROBERTS
• Citation: 208 A.2d 110,99 R.I. 388
• Decision Date: 16 March 1965
• Docket Number: No. 10690
• Parties: CENTRAL SOYA COMPANY, Inc. v. Evelyn K. HENDERSON et al. Ex.

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208 A.2d 110 99 R.I. 388 CENTRAL SOYA COMPANY, Inc.
v.
Evelyn K. HENDERSON et al. Ex. No. 10690. Supreme Court of Rhode Island. March 16, 1965.

[99 R.I. 397]

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Edwards & Angell, Knight Edwards, Ernest N. Agresti, V. Duncan Johnson, Providence, for plaintiff.

Abedon, Michaelson & Stanzler, Milton Stanzler, Richard A. Skolnik, Alvin N. Biener, Providence, for defendants.

[99 R.I. 389] ROBERTS, Justice.

This action in assumpsit was brought to recover from the defendants, as guarantors, a portion of the indebtedness of the

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principal debtor. The matter was tried to a justice of the superior court sitting with a jury, who denied the plaintiff's motion for a directed verdict. The jury then returned a verdict for the plaintiff in the amount of $15,000. The trial justice thereafter denied the defendants' motion for a new trial and denied the plaintiff's motion for the entry of judgment notwithstanding the verdict but granted its alternate motion for a new trial on the question of damages subject to the defendants' consent to an additur. The plaintiff and the defendants are now in this court prosecuting their respective bills of exceptions.

The record discloses that for some time prior to 1960 defendants were engaged in raising poultry for market, the business being incorporated as Shore Road Live Poultry Company, hereinafter referred to as Shore Road. It further appears that in the conduct of that business they occasionally purchased feed from C. Fred Lincoln, hereinafter referred to as Lincoln, who conducted a grain business in Mystic, Connecticut. The defendants concede that in August 1960 they executed an agreement in writing which on its face purports to guarantee the payment to plaintiff, a manufacturer of poultry feeds, of the indebtedness of Lincoln up to the amount of $30,000.

At the opening of trial defendants were granted permission[99 R.I. 390] to plead specially to the declaration out of time. The special plea alleged, in substance, that defendants executed the instant agreement pursuant to an understanding that they were guaranteeing the indebtedness of Shore Road; that at the time of such execution the identity of the principal debtor had not been set out in the instrument; that when plaintiff came into possession of the instrument it wrongfully inserted the name of Lincoln as the principal debtor; and that defendants did not become aware of this substitution of the principal debtor until after April 5, 1963. The defendants thus put into issue the question whether they had, in executing the instrument, intended to become liable for the indebtedness of Lincoln in the amount stated therein.

To prove the amount of indebtedness of Lincoln, plaintiff put into evidence thirty-seven trade acceptances, so called, each of which on its face disclosed acceptance by Lincoln. Each such trade acceptance appears toj be payable ninety days after its date of execution and, exception the first in chronological order, bears no indicia of payment, demand of dishonor. The one acceptance referred to above has on its face a penciled notation which, according to subsequent testimony, reflects a credit for part payment thereof. This testimony was also to the effect that whenever payments were made on the Lincoln account, they would be credited to the oldest outstanding trade acceptance.

Evidence to establish the amount of the principal indebtedness was adduced through Charles F. Sullivan, who testified that he was employed by plaintiff as a credit manager, in which capacity he supervised accounts of plaintiff's customers in the eastern division, so called. He testified further that he was familiar with the credit rating and condition of all accounts under his supervision and that all of the trade acceptances put into evidence remained unpaid. Refreshing his recollection by reference to a summary of [99 R.I. 391] the items contained in the Lincoln account, he testified that the total amount of the indebtedness was $64,065.08 and that no payments had been made by defendants on the principal indebtedness.

The defendants argue that it was error to admit the trade acceptances into evidence in that it violated the best evidence rule. They contend that the amount of the principal indebtedness to which the guarantee applies ought to be proved by plaintiff's books of account wherein would be disclosed evidence of payments as well as the balance due thereon. The pertinence of the best evidence rule frequently depends upon the posture in which the claim of the plaintiff is presented. In cases

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for the enforcement of guarantee contracts, it is the obligation of the plaintiff to establish clearly the amount of the principal indebtedness to which it contends the guarantee has application.

Because we take the view that these trade acceptances were the original records of the indebtedness alleged to be guaranteed by defendants, their admission did not violate the best evidence rule. The situation here is not identical with that in Edward Wilkinson & Co. v. Universal Safety Ash Tray Co., R.I., 133 A. 658. The evidence proffered in that case consisted of time sheets, the content of which was data copied from time cards of employees. In this case the trade acceptances reasonably may be equated with the missing time cards in that case.

During cross-examination the witness Sullivan disclosed that he had...