Watts v. Sawyer

• Decision Date: 09 December 1874
• Citation: 55 N.H. 38
• Parties: Watts v. Sawyer.
• Court: New Hampshire Supreme Court

55 N.H. 38

Watts v. Sawyer.

Supreme Court of New Hampshire

December 9, 1874

In an action of assumpsit for not accepting goods sold, it appeared that the defendant agreed to take the goods and pay the plaintiff their cost for the same; there was also evidence tending to show that he afterwards refused to perform his contract by accepting the goods. Held, that a nonsuit could not be ordered even though there were no evidence as to the cost of the goods.

Evidence of the value of goods is admissible on the question of their cost. Whether a memorandum, which a witness knew when it was made to be correct, can go to the jury as evidence, depends upon whether the witness, after examining it, is able to state the fact from memory

ASSUMPSIT by Benjamin F. Watts against Jacob Sawyer, for not accepting goods sold. The plaintiff offered in evidence the following writing (the signature and delivery of which were properly proven), "as a memorandum of the agreement made by the parties." "Suncook, Sept. 23, 1871. This certifies that I have this day bought the stock and fixtures (including store-wagon) of B. F. Watts, in Bartlett's block, and am to pay him their cost for the same. Jacob Sawyer." The plaintiff called Henry H. Hartwell as a witness, who testified that, on October 23, 1871, he went with Watts to see the defendant. Watts inquired of the defendant whether he intended to take the goods according to their trade. The defendant said he thought he should not; that he could do nothing with old Bartlett on the store. Watts said he intended the defendant should keep his agreement; that he intended to proceed immediately to take an invoice of the goods,---and invited the defendant to be present at the taking of the same.

Watts and the witness then went to the store, and, with the assistance of one Kame, began to take the invoice. Kame took down and counted the various articles; Watts hunted up the bills of purchase, showing the cost of the goods. The witness then counted or measured the goods, and then made entries upon a schedule of the articles and their cost, as shown by the bills. The parties went through all the goods in this way. They ascertained the amount of freight, which was added in computing the cost. Five days were occupied in this way. Watts would read off the articles from the schedule, and when the witness had written a page of a bill of sale from Watts to the defendant, he would hand it to Watts, the witness then taking the schedule, and reading from the schedule while Watts examined the bill of sale. During the taking of the invoice, the defendant frequently came into the store and said he should not take the goods. The goods were sold at auction on November 14, the witness Hartwell acting as auctioneer. Just before the sale, the defendant came into the store, and said,---"Gentlemen, I wish you to take notice that I am now ready to take these goods, according to my trade with Mr. Watts, and I forbid the sale. I am now ready to take an invoice of all the goods I bought of Mr. Watts according to our agreement." Watts reminded him that the invoice had been taken with his knowledge and opportunity to be present, and declared that he should proceed to sell the goods. Holding the bill of sale in his hand, Mr. Hartwell announced that the goods would be sold at so much on the dollar of that inventory, and they were struck off to one Hatch at 62 1/2 cents on the dollar of the amount of the invoice. The plaintiff then offered the bill of sale in evidence, "for the purpose," as his counsel stated "of showing what was sold at the auction, and what the articles sold brought."

The court being of the opinion that the paper would be inadmissible for the purpose of showing the cost of the goods, being but...