Somers v. Wright

Gray, C. J. This action is brought to recover the price of lumber sold and delivered by the plaintiffs to the defendant. The defendant contended that by agreement between the parties the lumber was not to be paid for by him, but was to be applied in part payment of a due-bill from the plaintiffs to Farwell. 1. Evidence of the consideration of that due-bill, if not necessary to be introduced by the defendant, cannot have prejudiced the plaintiffs. The fact that this evidence had been rejected by the auditor did not prevent the defendant from offering it anew before the jury. The introduction of the report of an auditor does not exclude any other competent evidence, whether received before him or not. Allen v. Hawks, 11 Pick. 359. 2. The plaintiffs’ book of account was not competent to prove a promise of payment by the defendant. Coffin v. Cross, 3 Dane Ab. 322. Keith v. Kibbe, 10 Cush. 35. Gorman v. Montgomery, 1 Allen, 416. 3. The declaration of one of the plaintiffs, after the sale, and in the absence of the defendant, was equally incompetent for that purpose. Lucas v. Trumbull, 15 Gray, 306. 4. The instruction that the auditor had not found that the order for $1000 had been credited to Emerson was given upon the request of the defendant, and to meet the assertion of the plaintiffs’ counsel in argument that the auditor had so found, and was strictly correct; for the auditor made no specific finding upon that point, although he stated some evidence bearing upon it. The instructions under which that evidence was submitted to the jury were not excepted to and are not reported, and must be presumed to have been appropriate and sufficient. Exceptions overruled.