Tremain v. Edwards

Dewey, J. 1. The court are of opinion that, under a declaration in indebitatus assumpsit, containing the common counts, for goods sold and delivered, labor and services done and performed, and money paid and expended, the plaintiff may recover for board furnished the defendant and his servants. Witter v. Witter, 10 Mass. 223. 2. It was objected that the account book of the plaintiff was not competent evidence, as, from the very nature of the case, there was better evidence to be derived from the persons whose board was the subject of the account. Generally speaking, the position is a sound one, that a sale of articles 416 delivered to third persons, cannot be proved by a book charge supported by the oath of the party. It would be so in the case of money paid to a third person, with the exception of small sums. Faunce v. Gray, 21 Pick. 243, 247. But cases of this kind must be decided upon their own peculiar circumstances, depending very much upon the nature of the charges. It is not in every case, where third persons are present at the delivery of goods, that the books of the party cease to be competent evidence. In the ordinary case of a shopkeeper, there would be clerks present at the delivery; but when the items are small and numerous, it would be impracticable to prove them except by the account book and oath of the party. The present case is peculiarly one where a resort to the book is necessary, the account consisting, as it does, of small items, charges of meals for single days, furnished at different times to a large number of persons in the employ of the defendant. The charges singly are small, and not of a character to be proved by a third person, like the cases of money paid to such third person, or articles of property delivered to a third person, to be carried away and kept for his own use. We are of opinion, that the plaintiff’s book was properly admitted to prove the charge in the account, and that it was no valid objection, in a case like the present, that the charges were in part, and to a considerable extent, charges for meals furnished to the servants of the defendant. Mathes v. Robinson, 8 Met. 269, 271, seems to be in point. 3. As to the further question, arising on the statement in the cross examination, that the defendant “ only at the first time requested the plaintiff" to furnish the meals,” it seems to us, that this answer is to be taken in connection with the previous answer made to another interrogatory put by the defendant, wherein the plaintiff had answered “ that Edwards, at the first, requested that the meals should be furnished whenever they were there.” The two taken together would embrace future as well as present meals. No objection can be raised to the competency of these answers, as they were in reply to the defendant’s interrogatories. Judgment for the plaintiff.