John Irving Shoe Co. v. Dugan, 3256.

• Decision Date: 08 December 1937
• Docket Number: No. 3256.,3256.
• Citation: 93 F.2d 711
• Parties: JOHN IRVING SHOE CO., Inc., v. DUGAN.
• Court: U.S. Court of Appeals — First Circuit

93 F.2d 711 (1937)

JOHN IRVING SHOE CO., Inc., v. DUGAN.

No. 3256.

Circuit Court of Appeals, First Circuit.

December 8, 1937.

J. C. Johnston, of Boston, Mass. (Maurice Wolf, of Boston, Mass., on the brief), for appellant.

Samuel Rosenberg, of Boston, Mass. (Sidney S. Grant, of Boston, Mass., on the brief), for appellee.

Before BINGHAM, WILSON, and MORTON, Circuit Judges.

MORTON, Circuit Judge.

This is an action to recover the balance alleged to be due on a construction contract. The plaintiff sues as assignee of the contractor who did the work, the George A. Dugan Company which we shall refer to as the plaintiff. There was a verdict for the plaintiff, and the defendant has appealed. Various assignments of error are made, the most important of them being that the defendant was entitled to a directed verdict.

There was evidence from which the following facts might have been found: The plaintiff is a contractor, specializing in rebuilding and refitting stores and store fronts. The defendant is engaged in the retail shoe business with a chain of stores at various points. The parties entered into an oral contract for certain work to be done by the plaintiff on the defendant's store in Baltimore, Md. The work was to be done at cost to the plaintiff, plus a certain percentage as profit or commissions. It was duly completed, the present dispute relates only to the payment for it. The defendant's answer was a general denial, and it also alleged payment, settlement as of a disputed claim and a written discharge of the claim, and an accord and satisfaction. On very conflicting evidence the jury found against the defendant on the issues of payment, settlement and written discharge, and accord and satisfaction. These issues were plainly for the jury to determine; and the verdict not having been set aside must be accepted.

It devolved upon the plaintiff to establish the cost of the work to it and the amount of the commissions to which it was entitled. An itemized bill sent to the defendant by the plaintiff was admitted in evidence; it contained over 400 items of labor and materials and credits. The court ruled that of itself the bill did not constitute evidence that the labor and materials stated therein had been furnished. The plaintiff's former bookkeeper testified that she made up the bill from work sheets, but no such sheets were put in evidence or offered for inspection. The plaintiff's ledger was offered for inspection, but showed only totals, not the separate items, and was excluded. There was no evidence that the books and papers of original entry had been lost or destroyed or were unavailable; nor was there any evidence that the various items of labor and materials listed on the bill had been actually furnished, or represented actual disbursements, or were fair and reasonable charges for the labor and materials.

The itemized bill was not admissible under the Act of June 20, 1936, § 1, 28 U.S.C.A. § 695, which provides that business records to be admissible must (1) be made in the regular course of business, and (2) it must have been the regular course of such business to make such record at the time of the transaction noted. If it be assumed, which we do not intimate, that office copies of admissible business records which have been lost or destroyed or are inaccessible are admissible under the statute, no foundation was laid for admitting the bill as evidence of the facts stated on that ground. We think that the bill, whether regarded as an original instrument, or as a copy, furnished no evidence warranting a verdict for the plaintiff.

The only other evidence in support of the plaintiff's claim was that furnished by the testimony of Mr. Dugan. He testified in detail as to the making of the contract, the submission of drawings and sketches, and the progress and completion of the work, as to...