Mercer v. Frank Hitch Lumber Co.

• Decision Date: 28 February 1917
• Docket Number: 60.
• Parties: MERCER v. FRANK HITCH LUMBER CO.
• Court: North Carolina Supreme Court

91 S.E. 588

173 N.C. 49

MERCER v. FRANK HITCH LUMBER CO.

No. 60.

Supreme Court of North Carolina

February 28, 1917

Appeal from Superior Court, Edgecombe County; Allen, Judge.

Action by W. P. Mercer against the Frank Hitch Lumber Company. Judgment for the plaintiff, and defendant appeals. No error.

Memoranda made by a deceased third person in the course of his business are admissible after proof that they are contemporaneous with the act to be proved, and that the entrant had knowledge of the relevant facts therein contained.

Memoranda made by a deceased clerk of measurements of timber made on delivery of the timber at defendant's mill, are inadmissible to show the amount of timber cut from plaintiff's land.

The action was to recover a balance claimed to be due on a sale of timber, and which defendant contended had been fully paid for. On the trial, there was evidence on the part of plaintiff tending to show, among other things, that, in May 1909, he sold to defendant the timber to be cut from a tract of land in said county, containing 75 to 100 acres; that the timber in question was very large, long straw pine, and was to be paid for at $3 per thousand, and the amount of timber had been estimated by witness at 500,000 feet; that the timber was cut and hauled off the land by defendant, and thereafter defendant sent plaintiff a statement, showing the amount at 212,500 feet; that plaintiff knew that there was a mistake, and had same carefully measured on the stump getting the number of cuts to the log plainly marked by sawdust as each stock was sawed, and the amount was 430,000 feet, and, for the difference, plaintiff had never been paid. The persons employed by plaintiff to take these measurements testified as to the amount and to the care with which same had been ascertained. A witness by the name of Dupree, whom defendant alleged they had employed to measure the timber as it was taken off the ground, stated that this was not done as to all the timber cut; that he knew of 2 1/2 trains of 40 cars each, 1,800 to 2,000 feet per car; that he had supposed another man was measuring it, but, after that time, he measured the timber and sent statements to each of the parties. It appeared also that plaintiff had sold defendant timber off of several other tracts of land in the county about which there seems to have been no dispute, the issue between them being as to this tract of 100 acres adjoining H T. Hinton et al. A witness, Frank Hitch, testifying for defendant company, said, among other things: That he did not have personal knowledge of the timber or the measurements. That the company had employed a man named Dupree to measure the timber as it was sent to the Atlantic Coast Line Railway station, and they had also the record of measurements of the timber at the defendant's mill, where it was unloaded by the railroad company. These were made by a man named Howard, who was dead at the time of the trial. That the books showed the amount of timber in dispute to be 212.558 feet at $3 per thousand. The witness further testified that he had a statement made out by his bookkeeper, showing the account between plaintiff and the company, covering different transactions from 1904 down to and including this deal, and showing a balance due from defendant company on account of $35.75; that part of this statement had been furnished by the witness, Dupree; that, in February, 1910, when plaintiff was in Norfolk, witness had showed him the statement, putting the amount from this disputed item at 212.558 feet and plaintiff objected to the amount as insufficient, and witness then offered him a check for the balance, as shown, which he declined to take; that witness took the check back to the office and put it in the safe and a year or so after, when they had some transaction, about timber in another section of the county and in settling, the witness inclosed him this check, and called attention to it as being the check made out to him last year. This came back through the bank as paid. The statement of account did not accompany this check when it was sent, and was just the check for the amount of $35.75. The plaintiff in his testimony denied that any such account was ever shown him, or that any claim was made that the $35.75 was, or purported to be, any settlement for an alleged balance; that witness received the check in the mail with some other checks for timber, but no statement of what it was for and no attention was called to it; that witness supposed it was a check payable on account, and so indorsed it; that he had sold defendant several other tracts of timber after the timber in dispute was cut; that witness, in indorsing the check, did not intend or agree to take same in full. On this the evidence chiefly relevant offered by the parties, the cause was submitted to the jury, who rendered a verdict for plaintiff. Judgment on the verdict, and defendant appealed, assigning errors.

John L. Bridgers, of Tarboro, for appellant.

F. S. Spruill, of Rocky Mount, and W. O. Howard, of Tarboro, for appellee.

HOKE J.

Objection is made to the validity of the trial for that the court excluded the written memoranda of Howard, deceased purporting to be a measurement of logs hauled from the land in controversy and left at defendant's mill by the Railroad Company, the memoranda described and referred to by the witness, Frank Hitch. It does not clearly appear from the record the exact amount of timber that these memoranda would have disclosed, but, in any event, we think they were properly excluded. If they included the same or a less quantity than defendant's books showed, they were without practical significance on the issue, for plaintiff admitted that such amount had been fully accounted for and he had deducted it from his claim. On that ground, the objection should be overruled, for the burden is on the defendant...