Commonwealth v. Aronson

Pierce, J. The defendant was indicted for the crime of perjury. The indictment set forth “ That in a proceeding in the course of justice before a Justice of the Superior Court on the twenty-ninth day of January in the year of our Lord one thousand nine hundred and twenty-three, at Cambridge, in the County of Middlesex aforesaid, on an issue within the jurisdiction of said Court duly joined and tried before a jury of the said County .between Fred Tillier, as plaintiff, and John M. Aronson, as defendant, said John M. Aronson was lawfully sworn as a witness. Whereupon it became and was material to said issue as to whether said Fred Tillier signed five contracts in the sight and presence of said John M. Aronson and to this the said John M. Aronson did willfully and corruptly testify and say in substance and effect that said Fred Tillier signed five contracts in the sight and presence of said John M. Aronson; his said testimony as above set forth being false as he well knew.” At the trial, the writ, declaration and answer in the civil case of Tillier v. Aronson were admitted in evidence. The declaration was in.three counts, and the plaintiff upon one or other of these counts sought to recover of the defendant damages for failure of the defendant to deliver to the plaintiff barrels such as the plaintiff had ordered, and paid for in advance. Without objection, the testimony of Aronson taken steno-graphically at the civil trial was read to the jury. In substance this testimony was that Aronson had not known Tillier before March 15, 1918, when Tillier asked if he would sell him barrels in carload lots; that Aronson replied he would [525] sell whatever he had in his yard; that Tillier went down to the yard and looked over the barrels; that he came to a pile of barrels and asked the price of these barrels; that Tillier said he would give Aronson $2.25 per barrel if he would put them on the cars and ship them to New Jersey; that Aronson said he would not be willing to do that, but Tillier could buy them f. o. b. cars Cambridge; that Tillier said he would do this provided he was allowed to inspect the barrels at the cars in Cambridge, and Aronson agreed to this; that they went upstairs and Tillier gave Aronson a check for the barrels, Aronson saying that he would start shipments as soon as the check came through; that thereupon Aronson directed his bookkeeper to make out “a memorandum of an agreement,” which was made in duplicate. Aronson testified: “ I signed the original and Mr. Tillier signed the duplicate. I saw Mr. Tillier sign it myself. He signed it in my office in the presence of my bookkeeper.” He further testified that on each of the five occasions on which Tillier came to purchase barrels a memorandum of the agreement entered into was made out in duplicate; that he saw Tillier sign one copy and he signed the other. ' In the civil case these documents were introduced in evidence, and when the case was finished were handed to the defendant by his counsel in that case; the defendant was then told that the papers were of no further use and he put them in the waste basket. These papers were alike in form, were filled in according to each order, and read as follows: “I, F. Tillier, of Brooklyn, New York, have this day agreed to purchase of J. N. Aronson of East Cambridge, Mass.; and the said J. N. Aronson has agreed to sell to the said F. Tillier a lot of . . . or carloads of oil barrels at the price. . . . Mr. Tillier is to remove these mentioned barrels within . . . days . . . from this date from J. N. Aronson’s yard, Cambridge, and Mr. Tillier is to inspect these barrels at the time of loading. J. N. Aronson hereby acknowledges receipt of check for ... dollars.” At the trial in the civil ease Tillier denied that he had signed the documents; and an expert, to whom the documents were referred, testified that in his opinion the signatures on them were not in Tillier’s handwriting. In the [526] case at bar a handwriting expert testified that he had examined the five contracts and an admittedly genuine copy of Tillier’s handwriting; "that the signatures were too similar to have been written on different dates”; and "that in his opinion the signatures on the five documents were not those of Mr. Tillier.” At the civil trial Aronson further testified: " During the talk with Mr. Tillier before papers were passed there was no talk about the particular kind of barrels to be furnished. I shipped him no barrels which he did not pick out in the yard or inspect at the cars except one carload which was shipped from Maine. It was my general custom to have the buyer pick out the barrels from the pile. A man who wants to buy barrels from me has to look around until he finds what he wants. It was my usual custom to have a written agreement similar to the agreement with Mr. Tillier, even if the barrels were paid for in advance.” In passing it must be noted that the alleged signed “ memorandum of an agreement ” in an important particular differs from the unformulated oral agreement, in that Tillier does not agree in the " signed agreement ” to “ buy them [the barrels] f. o. b. cars Cambridge”; and in that the "signed agreement” provides for the purchase and sale of “ oil barrels,” as distinguished from barrels which may or may not be fit for or adaptable to any particular use. It was the contention of the plaintiff that he purchased five cars of second-hand oil barrels, which were to be paid for in advance and were to be shipped to Bayonne, New Jersey.' The second count of the declaration in the civil action alleged an express warranty that the barrels purchased were “ refined No. 1 barrels.” The third count in-the said declaration alleged " that the barrels were not merchantable as oil barrels and not fit and suitable for. the purposes of the plaintiff.” On these allegations of the declaration there were to be tried the issue of an express warranty and the issue of an implied warranty. The “ memorandum of an agreement ” contains every element of an express formal contract, and if executed by [527] the parties was a complete answer and defence to the allegation of an express warranty, set out in count 2 of the declaration. The alleged memorandum if executed was also a defence to the contention of the plaintiff that he had the right of inspection in New Jersey, as a condition subsequent to the passing of title in Cambridge; and established the contention of the defendant that the right of inspection and the right of rejection were, by the terms of. the written agreement, to be exercised, if at all, in Cambridge; and that the failure to inspect in Cambridge within the terms permitted by the written contract deprived the plaintiff of the right to return the goods and receive the money paid, as also of the right to retain the barrels and recover damages of the defendant because of any breach of an implied warranty of fitness, which an inspection at the time and place named in the alleged contract would have disclosed. Bradt v. Hollaway, 242 Mass. 446. Rosenbush v. Learned, 242 Mass. 297. Williston, Sales, § 234, n. 34, 35, 39, 40. G. L. c. 106, § 15, cl. 3. What has been said disposes of the contention of the defendant that there was a fatal variance between the allegation in the indictment, “ and that the defendant falsely testified that said Fred Tillier signed five contracts,” and the proof; as it does of the contention “ that the five alleged ‘ contracts ’ were not material on the issue whether the plaintiff in Tillier v. Aronson lawfully rejected a certain number of barrels.” The reading of Tillier’s testimony in the civil trial, taken stenographically, was admissible to show the issue or issues raised by the pleadings in that action. It was also admissible to show what issues'were in.fact .submitted to the jury under the instructions of the judge; and such record of the testimony was not inadmissible because in substance it corroborated the oral testimony of Tillier given in the criminal case without objection. Foye v. Patch, 132 Mass. 105. Butchers’ Slaughtering & Melting Association v. Boston, 137 Mass. 186. Coyle v. Taunton Safe Deposit & Trust Co. 216 Mass. 156. An examination of the charge does not disclose, as the defendant contends, that the.judge left to the jury to [528] decide “ whether the evidence of the false testimony by the defendant was material to any issue,” but shows that he did not leave such issue to them. We have examined all the contentions of the defendant and find no error in the action of the court concerning them. Exceptions overruled.