Edward Wilkinson & Co., Inc. v. Universal Safety Ash Tray Co., Inc.

• Citation: 133 A. 658
• Decision Date: 11 June 1926
• Docket Number: No. 6149.,6149.
• Parties: EDWARD WILKINSON & CO., Inc., v. UNIVERSAL SAFETY ASH TRAY CO., Inc.
• Court: United States State Supreme Court of Rhode Island

133 A. 658

EDWARD WILKINSON & CO., Inc.,

v. UNIVERSAL SAFETY ASH TRAY CO., Inc.

No. 6149.

Supreme Court of Rhode Island.

June 11, 1926.

Exceptions from Superior Court, Providence and Bristol Counties; Edward W. Blodgett, Judge.

Action for labor and materials by Edward Wilkinson & Co., Inc., against the Universal Safety Ash Tray Company, Inc. Verdict for plaintiff, and defendant brings exceptions. Exceptions sustained in part and overruled in part, and case remitted.

Frank H. Wildes, of Providence, for plaintiff.

Alfred G. Chaffee and Ira Marcus, both of Providence, for defendant.

PER CURIAM. In an action for work and labor done and materials furnished at the request of one Golde, who represented himself as the agent of defendant, plaintiff recovered a verdict for $972.95. No express authority for Golde to so act was shown. Plaintiff made no inquiry about Golde's authority. Defendant's liability, if any, rested upon inferred ratification by receipt of some of the goods after alleged receipt of bills charging them to defendant.

A motion for a new trial was denied in a rescript expressing no opinion on the issue of ratification. Refusal to grant a new trial however stands, under our rule, as an approval of the verdict. With such decision on the weight of evidence alone, this court is reluctant to interfere. In conjunction with other circumstances, however, it sometimes has been done.

Of defendant's exceptions, the second and twelfth only possess merit. The others need no consideration. The second exception relates to a question by plaintiff to its first witness McCabe, who had no dealings with defendant about the subject-matter of this contract until after the work was completed. The question asked was, "In the month of January, 1923, was any work done under your direction at the Edward Wilkinson & Co. shops for the Universal Safety Ash Tray Company?" to which the witness, subject to defendant's exception, answered, "Yes." This plainly was a conclusion and not a statement of fact. The answer could only be made by the jury, not by the witness, and witness' answer was prejudicial to defendant.

In the course of the trial plaintiff offered in evidence certain papers marked "Exhibits 1, 2, and 3," which were called by the bookkeeper original entries. Exception 12 relates to their admission. Exhibit 1 consisted of four sheets from a loose-leaf holder showing time spent by certain workmen and some materials charged to defendant. Exhibit 2 was three typewritten loose-leaf sheets selecting and combining certain charges from Exhibit 1 under dates of February 28, March 23, 24, and 31. These were the bills which plaintiff claims to have sent to defendant. Exhibit 3 was the ledger total of each bill on Exhibit 2. The bookkeeper testified that the entries of time and materials on Exhibit 1 were taken from time cards turned in by workmen. None of the workmen testified relative to the accuracy of the cards, nor was there any explanation of the absence of both cards and workmen. The bookkeeper had no personal knowledge of the facts appearing on the exhibits. Plaintiff brought this suit on April 16, 1923, within two weeks after ceasing to work under Golde's orders. Its custom was to keep the workmen's time cards for a year after a job had been completed. The bookkeeper did not know whether the cards for the work now in question were in existence. They were stored in the cellar of plaintiff's shop and both the bookkeeper and the president of plaintiff company admitted that it was a very easy matter to ascertain if the cards were still in existence On page 65, question 33 and question 34, plaintiff's counsel asked the bookkeeper:

"Are the original cards in your possession at the present time? A. I would have to go down cellar and see; I do not know.

"Q. They are lost so far as you know at the present time? A. I do not know now. I would have to look that up."

Defendant, on such a...