Kreeger v. Margolies

De Courcy, J. As we understand this somewhat obscure bill of exceptions, it is not in dispute that the defendant Jacobs ordered and selected certain pieces of woollens at the plaintiffs’ place of business in New York. Later the defendants received all the merchandise which the plaintiffs claimed to have delivered, but refused to accept four of the fifteen items, on the ground that these were not the same goods that they had ordered. This action was brought to recover for all the merchandise. The only exception (other than one which was immaterial, and not argued,) is one to the admission in evidence of the front part of two pieces of paper purporting to show the goods that were ordered by the defendant Jacobs. The plaintiff Arthur Kreeger testified “we took out all the pieces and put them one side, and after checking th'em all off with Mr. Jacobs., the goods that he picked out, then I marked down in front of him on those two pieces of paper, on the order slips, whatever he selected, and after being agreed upon the price, then I marked down on the paper the prices which we agreed upon.” He further testified that he called the attention of Jacobs to what he was writing, showed him the papers, and that Jacobs saw them; and further that these were the goods which were shipped. In these circumstances the written 225 orders were admissible as some evidence of an implied admission by Jacobs that the unrepudiated statement therein of the goods ordered by him was correct. The order of proof rested in the discretion of the court. We must assume that the application of this evidence was properly guarded in the charge, to which no exception was taken. Commonwealth v. Neylon, 159 Mass. 541, 545. Sumner v. Gardiner, 184 Mass. 433. Auringer v. Cochrane, 225 Mass. 273. The admissibility of the orders on other grounds need not be considered. See Brooks v. Duggan, 149 Mass. 304; Rogers v. Krumrie, 143 Mich. 15; St. Joseph Hydraulic Co. v. Globe Tissue Paper Co. 156 Ind. 665. Exceptions overruled.