Sawyer v. Hillgrove

• Decision Date: 26 June 1929
• Citation: 146 A. 705
• Parties: SAWYER v. HILLGROVE.
• Court: Maine Supreme Court

146 A. 705

SAWYER

v. HILLGROVE.

Supreme Judicial Court of Maine.

June 26, 1929.

Exceptions from Superior Court, Penobscot County.

Action in assumpsit by Frank S. Sawyer against Leonard R. Hillgrove. Verdict for defendant, and plaintiff brings exceptions. Exceptions overruled.

Argued before WILSON, C. J., and DUNN, DEASY, BARNES, BASSETT, and PATTANGALL, JJ.

Clinton C. Stevens, of Bangor, for plaintiff.

Ryder & Simpson, of Bangor, and Daniel Hurley, of Ellsworth, for defendant.

PATTANGALL, J. Exceptions. Assumpsit on two counts; account annexed and claim for damages for breach of contract. Writ dated April 20, 1928. Plea general issue and statute of limitations. Directed verdict for defendant. Exceptions relate to the exclusion of certain evidence, both documentary and oral; to the exclusion of plaintiff's affidavit under the provisions of section 127 of chapter 87, Rev. St. 1916, as.amended by chapter 96, Laws 1925; to the ruling of the court compelling plaintiff, at the close of his evidence, to elect upon which count he relied; and to the direction of a verdict against him.

In September, 1919, defendant contracted in writing to sell and deliver to plaintiff 1,000 cords of pulp wood, final delivery to be completed in the spring of 1920. Plaintiff agreed to purchase the same and to pay therefor $15 per cord for peeled wood and $12 per cord for rough wood. There was delivered, under this contract, wood of the value of $6,979.66, the last delivery being on October 20, 1920, and plaintiff paid therefor $7,200, the last payment being made on April 28, 1920, in addition to which, in the fall of 1919, he paid out $7.75 in expenses properly chargeable to defendant. Notwithstanding that defendant had been overpaid for the wood delivered by him, he failed to make further deliveries. These facts were properly set forth in the second count of the plaintiff's writ and were substantiated in evidence.

The original agreement between the parties had been lost or destroyed, and plaintiff sought to supply its place by offering another document which he claimed was jointly dictated by the defendant and himself to an attorney acting for both of them, on October 1, 1920, and which purported to recite the terms of the original contract. This latter agreement was never signed by either party. The sole purpose which it could have served would have been to prove the terms of the earlier agreement. It was excluded, and the first exception is as to its exclusion.

Assuming that it may have been admissible as proof of an admission on defendant's part of the existence and terms of the original contract, plaintiff was not aggrieved by its exclusion. He was permitted to refresh his memory by examining it, and testified to its contents, in so far as they were related to the matters in issue. He proved the original contract by his uncontradicted testimony and proved it in accordance with his declaration. True, he had the right to support his testimony with any competent corroborating evidence, but, his statement not having been attacked, he suffered no loss by the ruling.

Further than that, the breach of contract of which he complained occurred in 1920. Recovery of damages therefor was obviously barred by the statute of limitations. There is nothing in the evidence to indicate that the excluded document affected this situation. "Plaintiff is not aggrieved by the exclusion of evidence, which, even if admissible, would not affect the result of the case." Look v. Norton, 94 Me. 547, 48 A. 117; Freeman v. Dodge, 98 Me. 531, 57 A. 884, 66 L. R. A. 395; Merrill v. Mlllikcn, 101 Me. 50, 63 A. 299.

In addition to the above reasons which seem sufficient warrant for overruling this exception, the question sought to be raised is not properly before us. The document in question is not made a part of the bill of exceptions by direct quotation, nor is it incorporated therein by reference. It did not become a part of the evidence. It is not, therefore, included in the blanket clause which made the evidence in the case a part of the bill. It is the well-settled rule in this state, too well settled to be now shaken, that the excepting party in his bill of exceptions must set forth enough to enable the court to determine that the point raised is material and that the ruling excepted to is both erroneous and prejudicial, or he can take nothing by his exceptions. Doylestown Agricultural Co. v. Brackett, Shaw & Lunt Co., 109 Me. 301, 84 A. 146; Copeland v. Hewett, 96 Me. 525, 53 A. 36; Lenfest v. Robbins, 101 Me. 176, 63 A. 729. Plaintiff should have incorporated the excluded exhibit in his bill if he desired this court to pass on its admissibility.

The second, third, and fourth exceptions relate to the exclusion of certain conversations alleged to have occurred between plaintiff and defendant relative to the purchase by defendant of a certain automobile. The last debit item in plaintiff's account annexed, with the exception of charges for interest and a charge of "Amount due on contract $8360.08," and the only item which did not show on its face that it was barred by the statute of limitations, was a charge for "an automobile, sold and delivered, $1920," under date of May 3, 1922.

The last credit item, and the only one within the statute, was "wood delivered on auto 125 cords, $1500" under the date "1922."

Defendant, in cross-examination of plaintiff, brought out the fact that, on May 3, 1922, Frank S. Sawyer Company, a corporation of which plaintiff was president, by written bill of sale, signed by plaintiff, as president of the corporation, conveyed to defendant an automobile, admitted to be the same automobile charged for in this account, for $1,920, and that on the same day defendant contracted in writing to deliver to the Frank S. Sawyer Company 150 cords of rough pulp wood at $12 per cord and 8 cords of peeled pulp wood at $15 per cord. The automobile was delivered to the defendant, and a part, if not all, of the wood was delivered to the corporation. After the documentary evidence relative to the automobile had been introduced, plaintiff offered evidence of a conversation on May 3, 1922, between himself and defendant, regarding the automobile. This was excluded. He was then asked whether or not defendant made a proposition to purchase the automobile in question from plaintiff. This also was excluded. He was then asked if he (plaintiff) owned the automobile in question. This was excluded. Exceptions were taken to these various rulings.

In plaintiff's brief it is urged that the testimony sought to be introduced would have sustained the proposition that plaintiff and defendant agreed that the automobile and pulp wood which was to be received in payment therefor were to be entered upon both sides of the account then existing between them.

There is nothing in the record to warrant the assumption that any such evidence as that suggested in the brief would have been forthcoming.

In order to sustain an exception to a ruling excluding a conversation, the exceptions must disclose what the conversation was. Johnson v. Day, 78 Me. 224, 3 A. 647; Doylestown Agricultural Co. v. Brackett, Shaw & Lunt Co., supra.

But these exceptions fail on broader grounds. The bill of sale from the corporation to defendant, supplemented by the agreement on defendant's part to furnish sufficient pulp wood to the corporation to pay it for the automobile, constitute, taken together, a complete contract, in writing, under seal, between the parties thereto.

To permit oral evidence which would entirely destroy the effect of these written instruments and substitute therefor an oral contract of sale of an automobile by this plaintiff to defendant and an oral agreement on defendant's part to pay plaintiff for the automobile by delivering to him the pulp wood which defendant had agreed to deliver the corporation would be so patent a violation of primary rules of evidence that it is difficult to believe that the proposition is seriously argued. Had the written evidence of the actual contract not existed, the oral evidence suggested might have had the desired effect of avoiding the bar of the statute of limitations as to the remainder of the account. At any rate it would have been an ingenious, if not ingenuous, attempt to accomplish that purpose. But in view of the documentary evidence, plaintiff's position would be patently fallacious, even if his bill of exceptions had been so framed as to bring the question before us.

The fifth exception relates to the exclusion of the affidavit authorized by section 127, c. 87, Rev. St., amended by chapter 96, Laws 1925.

This statute provides that: "In all actions brought on an itemized account annexed to the writ, the affidavit of the plaintiff, made before a notary public using a seal, that the account on which the action is brought is a true statement of the indebtedness existing between the parties to the suit, with all proper credits given, and that the prices or items charged therein are just and reasonable, shall be prima facie evidence of the truth of the statement made in such affidavit, and shall entitle the plaintiff to judgment unless rebutted by competent and sufficient evidence."

The purpose of the statute which enables a plaintiff to make out a prima facie case without submitting himself to cross-examination has been said to be "to facilitate procedure in collection of accounts in actions of assumpsit." "It applies only to actions brought on an itemized account." It is "in derogation of common law and should be strictly construed. There should be no attempt to extend its terms or plain intent by judicial" interpretation. Hamilton Brown Shoe Co. v. McCurdy, 124 Me. Ill, 126 A. 377.

In the instant case, the affidavit was offered after the plaintiff had testified fully and after cross-examination had revealed the fact...