Saba v. Cohen
| Decision Date | 06 February 1956 |
| Citation | 333 Mass. 557,132 N.E.2d 182 |
| Parties | Peter P. SABA v. Edward E. COHEN et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Louis Karp, Boston (Arthur L. Murray, Medford, with him), for plaintiff.
Edward E. Cohen, Boston, for defendants.
Before QUA, C. J., and RONAN, SPALDING, WILLIAMS and COUNIHAN, JJ.
This is an action of contract to recover for labor and materials alleged to have been furnished to the defendants in the construction of a house. The plaintiff had a verdict and the case comes here on the defendants' exceptions. Many questions have been argued by the defendants but only two, which relate to rulings on evidence, are open on this record.
1. While testifying with respect to plumbing and heating work done for the defendants, the plaintiff was shown 'nine sheets of written records' which he stated were 'record[s] kept * * * in the usual course of business.' He further testified that these records were kept under his supervision and showed the 'materials and labor that went into the job.' The judge 'admitted the alleged copies in evidence' subject to the defendants' exception. There was no error. These records were plainly admissible under G.L. (Ter.Ed.) c. 233, § 78, if the preliminary findings required by the statute were made by the trial judge. Where, as here, nothing to the contrary appears, the admission of the records implies a finding of the facts prerequisite to their admission. Bendett v. Bendett, 315 Mass. 59, 62, 52 N.E.2d 2; Sellew v. Tuttle's Millinery, Inc., 319 Mass. 368, 371, 66 N.E.2d 26. The defendants argue that evidence admitted consisted of copies of the records rather than originals and hence violated the best evidence rule. But we do not so interpret the record. We think that a fair construction of the record is that the sheets introduced were not copies of the plaintiff's records but were the actual records themselves. To be sure, they undoubtedly contained entries that were transcribed from other records, and in that sense they might be said to be copies. But that did not render the records inadmissible under section 78. On the contrary, that section expressly provides that the 'entry, writing or record' shall be admissible notwithstanding the fact that 'it is transcribed * * * hearsay or self-serving'. The statute goes on to provide that the court, in its discretion, before admitting the record may require the party offering it to produce the original 'entry, writing, document or account' from which...
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...Bendett v. Bendett, 315 Mass. 59, 62, 52 N.E.2d 2; Sellew v. Tutle's Millinery Inc., 319 Mass. 368, 371, 66 N.E.2d 26; Saba v. Cohen, 333 Mass. 557, 558, 132 N.E.2d 182. The fact that these writings were in the form of certificates does not prevent their being admissible under G.L. c. 233, ......
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