Richardson v. Lalumiere

• Decision Date: 17 April 1936
• Citation: 184 A. 392
• Parties: RICHARDSON v. LALUMIERE.
• Court: Maine Supreme Court

184 A. 392

RICHARDSON

v. LALUMIERE.

Supreme Judicial Court of Maine.

April 17, 1936.

Exceptions from Supreme Judicial Court, Cumberland County, at Law.

Action by Arthur F. Richardson against Joseph T. Lalumiere. On exceptions to acceptance of the report of a referee.

Exceptions overruled.

Argued before DUNN, C. J., and STURGIS, BARNES, THAXTER, HUDSON, and MANSER, JJ.

Grover Welch, of Westbrook, for plaintiff.

Edward B. Perry, of Portland, for defendant.

MANSER, Justice.

This case came up on exceptions to the acceptance of the report of a referee. It is an action of assumpsit for lumber sold and delivered. By agreement of the parties the case was referred to a referee with right of exceptions as to matters of law.

The account of the plaintiff contained seven debit items, amounting to $755.10, and gave credit for payments aggregating $250, and evidence was offered by the plaintiff in support thereof at the hearing before the referee.

The defendant admitted the purchase of lumber, but disputed the amount of most of the items and the prices charged. He also claimed credit for an additional payment of $200.

The referee found in favor of the plaintiff as to the debit items, and allowed the defendant the additional $200 credit which he claimed.

The plaintiff also set up in his writ a charge for interest from July 3, 1931, that time being alleged as the date of demand for payment, and the referee allowed interest on the net amount found by him to be due from that date to the date of the writ, and reported that judgment should be rendered for $373.39.

The defendant filed specifications of objections, asserting four errors of law on the part of the referee. The first was to the exclusion by the referee of two memorandum books kept by the defendant and claimed to be admissible under the shop-book rule as evidence in and of themselves of the amount of lumber purchased by the defendant. One such memorandum book was admitted without objection. The entries therein appear to refer to the first four items, but are unintelligible without explanation, and amount to nothing more than a memorandum. They do not show whether they refer to goods bought or sold. The kind of lumber is not disclosed or the price. The basis of the exception is that the referee erred in excluding the other books offered by the defendant, which it was alleged showed the amount of some of the lumber purchased and the dates on which it was purchased. The exceptions, however, are not accompanied by the books in question, nor are the entries claimed to be admissible made a part of the record. The court cannot determine their admissibility without knowing what they are.

The referee evidently excluded them on the ground that they were entries made by the purchaser of goods and not by the seller and were merely memoranda made for the convenience of the defendant.

In Waldron v. Priest, 96 Me. 36, 51 A. 235, 236, the defendant, a lawyer, offered his office docket, which contained this memorandum: "Nov. 18, 1896. Paid F. A. Waldron $25.00, which settles to date, as per agreement." And the court said:

"The entry was not a charge of goods delivered or services rendered, which, for the purpose of preventing a failure of justice, is admitted in evidence as an exception to the general rule. It was merely a memorandum made for the defendant's convenience. Such an entry or memorandum is not admissible in evidence."

"Loose memoranda or entries in diaries or memorandum books used for recording any matter of which the owner may wish to make note, while admissible for the purpose of refreshing the memory of a witness, have generally been excluded as independent evidence." 22 C.J., 871, citing, among other cases, Waldron v. Priest, supra.

The referee, while excluding the books themselves, allowed the defendant to refresh his memory by their use, and the defendant testified fully concerning the items in question.

The defendant invokes the aid of Public Laws of 1933, c. 59, relating to the admissibility of accounts in evidence, and contends that the books were admissible by virtue of their provisions. It is unnecessary to determine how far the act referred to modifies the...