Chadwick & Carr Co. v. Smith

• Decision Date: 29 January 1936
• Citation: 199 N.E. 903,293 Mass. 293
• Parties: CHADWICK & CARR CO. v. SMITH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

293 Mass. 293

199 N.E. 903

CHADWICK & CARR CO.

v.SMITH.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 29, 1936.

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

Action of contract by Chadwick & Carr Company against Arthur H. Smith. Verdict for plaintiff in the sum of $2,391.71, and defendant brings exceptions.

Exceptions overruled.

R. I. Gottlieb, of Boston, for plaintiff.

J. H. Morson, of Boston, for defendant.

FIELD, Justice.

This is an action of contract on an account annexed to recover for store fixtures and equipment alleged to have been sold and delivered by the plaintiff to the defendant. There was a verdict for the plaintiff. The case comes before us on the defendant's exceptions to the admission and exclusion of evidence. Two exceptions only are argued by the defendant.

The sole issue in controversy between the parties at the trial was whether the goods referred to in the account annexed were sold and delivered to the defendant personally or to a corporation of which he was an officer. There was evidence, other than that hereinafter specifically considered, tending to show that the goods were sold and delivered to the defendant personally, and also evidence tending to show that they were sold and delivered to the Manhattan Food Stores Company, a corporation of which the defendant was an officer, having a store at 240 Elm street, Somerville.

1. There was no error in the admission of the so called ‘bills of lading’ offered by the plaintiff and admitted subject to the defendant's exception.

The ‘bills of lading’ are three in number. Each is entitled ‘Uniform Straight Bill of Lading Original-Not Negotiable.’ In each of them the plaintiff is named as shipper, ‘Campana Company’ as carrier, and the defendant as consignee. Each document contains the words ‘Consigned to Arthur Smith Destination Elm Street, Somerville, State of Massachusetts.’ The defendant conceded ‘that the description of the articles in the several bills of lading is correct and that all said articles were duly delivered.’

A witness called by the plaintiff testified, as recited in the bill of exceptions, that ‘the keeping of the books, records and papers of the plaintiff company was all under her supervision,’ and that the documents in question ‘were all records which were kept in the usual course of business of the plaintiff; that the shipper kept the bills of lading in duplicate and for everything that went out of the factory or store he made out one of these bills of lading so that what goes out can be checked and that the duplicate is sent to the bookkeepingdepartment where it is checked up with the books to see if anything has gone out that is not charged and to see to whom it is made out, to see if it is the right party; that thereafter said duplicates are held for emergency some times to show that the goods have been delivered.’ This witness testified also ‘that Campana whose name appears on the three bills of lading was the man who did the trucking for the plaintiff company.’

The fact that each of the documents introduced in evidence was in the form of a bill of lading did not prevent its being ‘a writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event’ admissible ‘as evidence of the facts therein stated’ under G.L.(Ter.Ed.) c. 233, § 78, if the preliminary findings required by the statute were made by the trial judge and the facts stated in such ‘writing or record’ were relevant to the issue on trial. See Bursaw v. Pederson, 284 Mass. 471, 476, 477, 188 N.E. 233. The case of Rhoades v. New York Central & Hudson River Railroad Co., 227 Mass. 138, 116 N.E. 244, and other cases in this jurisdiction relied on by the defendant were decided before the scope of the statute now embodied in G.L. (Ter.Ed.) c. 233, § 78, was greatly enlarged by St.1930, c. 87, which became operative September 1, 1930. See 5th Report of the Judicial Council (1929) Public Document 144; (1930) House Document 1008. The judge on the evidence could have made the preliminary findings required by the statute ‘that the entry, writing or record was made in good faith in the regular course of business and before the beginning of the civil proceeding * * * and that it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter.’ It is to be assumed that the judge made these findings. Taylor v. Harrington, 243 Mass. 210, 213, 137 N.E. 350.

Each document constituting a ‘writing or record’ stated in substance that the goods described therein were ‘consigned’ to the defendant personally. This fact was relevant to the issue on trial. In view of the close...