Kaplan v. Gross

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: CROSBY
• Citation: Kaplan v. Gross, 223 Mass. 152, 111 N.E. 853 (Mass. 1916)
• Decision Date: 03 March 1916
• Parties: KAPLAN et al. v. GROSS et al.

223 Mass. 152

111 N.E. 853

KAPLAN et al.

v.GROSS et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 3, 1916.

Exceptions from Superior Court, Suffolk County; Loranus E. Hitchcock, Judge.

Action by Hyman E. Kaplan and others against Herman Gross and trustee. Finding for plaintiffs, and defendants except. Exceptions sustained.

Wm. Charak, of Boston, for plaintiffs.

Wm. R. Scharton, of Boston, and James H. Maguire, of Jamaica Plains, for defendants.

CROSBY, J.

The plaintiff, Hyman E. Kaplan, and the defendant entered into a partnership in August, 1912, for the manufacture of bottles and glass jars. The partnership took over the property of a business which previously had been unsuccessfully conducted by the plaintiff's son under the name of the Elk Flint Bottle Company. There was excepted out of this property about 3,000 gross of fruit jars which, in accordance with a written agreement between the parties, were ‘to be set aside as the personal property of said Hyman E. Kaplan.’ The partnership was dissolved on March 28, 1913, and on that date the parties entered into a written agreement which recited among other things that the plaintiff had sold his interest in the business to the defendant, but that the plaintiff ratained his ownership in the fruit jars above referred to, which were to remain upon the premises formerly occupied by the partnership until September 30, 1913, without charge for storage or custody. The agreement also provided that the defendant should account to the plaintiff for all sums received from the sale or such fruit jars less certain expenses incurred by the defendant in making such sales. This action is brought to recover the value of a portion of the fruit jars which the plaintiff claims the defendant has not accounted for or delivered to the plaintiff. The defendant admits that he owes the plaintiff for sixty gross of these jars.

[2] 1. For the purpose of showing the number of jars for which the defendant was liable to account, the plaintiff offered in evidence a certain inventory of stock made on August 27, 1912, about which time the partnership was formed. This inventory was taken by one Greenstein, who previously had been employed as a shipping clerk by the Elk Flint Bottle Company. The inventory was offered subject to the defendant's objection and exception. The undisputed evidence showed that the inventory was made by Greenstein, who testified that he counted the stock on that date ‘personally, with the exception of some of the jars which I couldn't count owing to the fact that they were so packed in bins that we couldn't consistently count them, but I took the record from a stock book that I had at that time and kept.’ It also appeared that the way in which the witness had ascertained the number of jars that were in the bins was ‘by counting the slips that were turned into the office, going over those slips upon which the [glass] blowers that made the ware were paid, and entering them in a book kept at the warehouse for that purpose.’ It is plain that independently of Sts. 1913, c. 288, the inventory was not admissible to show the number of jars on hand at that time, as the witness testified that he took it from the stock book. If we assume that the stock on hand taken by Greenstein and entered upon the stock book was so taken and entered in the usual course of his employer's business and in the performance of his duties, still, aside from St. 1913, c. 288, the stock book would not be admissible. It is not contended by the plaintiff that the slips were made by the witness or that he had any personal knowledge of the entries thereon. It was settled by this court long before the passage of the statute that items in a book of account made from slips and entered by a clerk who had no personal knowledge of the transaction as shown upon the slips are inadmissible. Atlas Shoe Co. v. Bloom, 209 Mass. 563, 569, 95 N. E. 952;Gould v. Hartley, 187 Mass. 561, 73 N. E. 656;Kent v. Garvin, 1 Gray, 148.

2. When the inventory was offered by the plaintiff, the presiding judge said: ‘I am not sure, however, but what it is admissible under the statute.’ The defendant's counsel at that time stated in substance that it did not seem to him that the evidence was admissible under the statute and duly saved an exception. We are of opinion...