Davison v. Powell

By the court—Potter, Justice. There is some evidence to sustain the referee’s third- finding. Peter Bortle, a witness, states, that “ about twenty-five of the oak logs were unsound and not used, not fit for lumber; Powell drew them, away; one or two pine logs were bad.” Christopher A. Brown testifies, that Powell gave away two logs. Frederick D. Morehouse, says, “ I sawed one of Powell’s logs for Porter, and charged the sawing to him.” Bansom Baker says, “ four or five of the oak logs were rotten or dozy.” There is also some evidence to sustaiU that part of the 14th finding excepted to by the defendant. The witness Cramer, though he gives the measurement in feet, yet says that Tie does not suppose Tie applied his rule to one quarter of the pieces, says it was bad lumber to measure; and he was vexed at it, and that he called it bad manufactured lumber. His principal, Mr. Gilbert, on the contrary, says it was pretty fair manufactured lumber. The exception to the 9th finding, “ that the plaintiff’s ad-count was correct,” is probably the main issue in the case; áüd all the exceptions in the case are proper to be examined in reference to this issue. It would be a sufficient legal answer to this exception, to say, that the defendant has no issue in the pleadings that denies the correctness of this account. The only pretence of a denial is the first answer, which is a negative pregnant, arid amounts to no denial of any single allegation. He denies that the plaintiff performed on the days, and at the times and to the extent or quantity mentioned. This is no denial of anything certain. This alone would entitle the plaintiff to an affirmance of the judgment; still, if it could be seen from the case, that injustice would be thereby done, the court might permit an amendment of the pleadings to help the case in this respect. But if we look into the merits of this question, from the evidence there is enough to justify the report of the referee. [470] The referee does not hold or decide that he adopts the books of the plaintiff as evidence, and there is evidence enough without the books to sustain his conclusion. The sworn answer sets up that there were logs sufficient in number and size to make the quantity of lumber charged, and the defendant does not include the price of sawing as among the things that he denies in his answeri The price, therefore, is not an issue in the case. There is evidence of a large quantity, of lumber to defendant, and that the defendant drew it away with his own teams. He had, therefore, the means of accurate measurement himself. The charges in the bill for extra work, and the damages for waste and carelessness, the referee has allowed to the defendant, and he has passed upon those issues by deducting those items from the bill. Hor do I think the book of account was incompetent evidence. They were always a low species of evidence, but they are allowed to be some evidence,, and if corroborated will sustain a judgment, and especially when the account is made a part of the complaint and sworn to. The book was not a ledger, as it is called by the defendant’s counsel. Had the proof rested entirely upon this book, it would have been a weak case of proof, much too weak to be relied on; still it is within the cases admitted to some weight, and it would perhaps alone have sustained a judgment upon report of a referee who had seen and examined it. The memoranda of the sawyers upon boards and paper memoranda, if truly copied into this book, make it a book of original entries within the case of Smith agt. Sandford, (12 Pick. 139,) and Sickles agt. Mather, (20 Wend. 72,) and there is evidence of such copying. The judgment must, therefore, be affirmed.