Jackson Caldwell Co. v. Poto

Rugg, C. J. This case comes- before us on appeal from the Municipal Court of the City of Boston. The plaintiff filed a draft report alleged by it to be conformable to the truth, which was disallowed by the judge who tried the case. Its petition to establish the draft report was denied by the Appellate Division. That decision is final. Cohen v. Berkowitz, 215 Mass. 68. The case must be considered on the footing of the report prepared and allowed by the judge. The draft prepared by the plaintiff must be disregarded. Speaking accurately, it is no part of the record. The action is in contract to recover a balance due on an account annexed for furniture delivered to a married daughter of the defendant. In the report is the statement that “There was no evidence that the defendant purchased the goods declared on, or directed them to be charged to him, other than the fact that the charge appeared on the plaintiff’s books showing that they were charged to the defendant in the usual course of business. The conversation that occurred at the time of the purchase was not remembered by any witness so as to be of any value. The de [60] fendant denied that he purchased the goods or directed them to-be charged to him.” He was with his daughter when the goods, were purchased and made payments on the account from time to time. The burden of proof was upon the plaintiff to prove by a fair-preponderance of the credible evidence that the goods were sold to the defendant. It is enough to dispose of the case to say that that was wholly a question of fact. The judge might have disbelieved every part of the plaintiff’s evidence inconsistent with the denial of the defendant. Lindenbaum v. New York, New Haven, & Hartford Railroad, 197 Mass. 314. Commonwealth v. Russ, 232 Mass. 58. The circumstances that a father makes payments of considerable amounts upon furniture for the home of his married daughter, or that a few of the chairs were delivered at the defendant’s place of business, although important as evidence, are not decisive in fixing legal liability in contract upon him. It is rarely that it can be ruled as matter of law that the burden of proof resting upon a party has been sustained. McDonough v. Metropolitan Life Ins. Co. 228 Mass. 450, 453. This case does not belong to that class. No error of law is disclosed in the findings made, and they are not inconsistent with each other or with admitted facts. Whether the defendant ever suggested to the plaintiff or its. agent that efforts be made to collect the bill of his son-in-law was. irrelevant to the issue whether the defendant made the contract in suit. Questions upon that point were excluded properly. The several requests which were denied were dealt with rightly. Order dismissing report affirmed.