Bullock v. Hunter

Bartol, C. J., delivered the opinion of the Court. The appellee residing in Hanover County, Virginia, was the proprietor of a saw mill at a station on the Chesapeake — 424 — and Ohio Railroad'and engaged in the manufacture of staves, heads, &c., for making barrels and kegs. Through the intervention of Richard W. Magruder he contracted to sell to the firm of Denson, Bullock and Quincy, of Baltimore, alhthe material of that description manufactured at his mill, at stipulated prices, he had the privilege of drawing on Denson, Bullock &• Quincy for two-thirds of the amount of each consignment. Under the contract he forwarded goods from June 1871 to August 1872, and drew regularly for about two-thirds of the amount of the several consignments, the drafts were accepted and paid at maturity, but failing to obtain a settlement of the balances due him he brought this suit to recover them. The appellant being the only one of the defendants summoned, .the other two being returned “non sunt, ” the suit proceeded against him. No testimony was offered by the defendant below; his defence rested upon the alleged failure, and insufficiency of the proof offered by the plaintiff to support his claim. Three bills of exception were taken by him, two of them to the admission of evidence and the third to the ruling of the Superior Court upon the prayers. These will be disposed of in their order. The first and second exceptions present substantially the same .question. The witness Hunter (the plaintiff) testifying in his own behalf, stated that he had consigned to Denson, Bullock & Quincy from his depot in Virginia certain cooper stuff consisting of keg materials and headings, and also shipped them, keg-heads and staves, and barrel-staves and heads, and stated the prices of. each, — that these shipments began in June 1871, and ended in June 1872 — and the whole amount of shipments was between $7000, and $8000, — that he had drawn on the several consignments to the extent of two-thirds of their value. The account which had been filed with the declaration, containing a particular statement of the several consign425 merits with the dates and prices, was then offered to the witness, who stated that he had examined the boobs of the O. &■ O. R. R. Co. and made it out himself from memoranda in his own possession, which he did not have with him ; that he had a distinct and independent recollection of the items charged in the account, though without the aid of the account he could not enumerate them ; objection was made by the defendant’s counsel, “but the Court overruled the objection and permitted the same to be used by the witness for the purpose of refreshing his memory as to amount and dates, and to give in evidence to the jury, his recollection thus refreshed,” and the defendant excepted. It appears by the second bill of exceptions, that after the ruling by the Court above stated, the same witness testified that he had made the shipments to D. B. & Q., which are set forth in the account, the witness testifying to these shipments, refreshed his memory from time to time by looking at the account, ho then swore positively that he had a distinct recollection of each shipment, independent of the account, and that the shipments so testified to were his own recollections, the witness further stated that the account was an original account made out by himself, from memoranda taken by himself at the time, hut not extended, and was not a copy from any book. The defendant objected to the placing of the account in the hands of the witness, and his refreshing his memory from it, from time to time ; hut this objection was overruled and the defendant excepted. We have no doubt of the correctness of this ruling. The objection on the part of the appellant is that the account is not an original paper made by the witness at or about the time of the transactionj but a mere copy, taken from memoranda which had been made by him, and was therefore inadmissible and for this he cites, Green vs. Caulk, 16 Md., 556; Ward, vs. Leitch 30 Md., 326, and Jones vs. Stroud, 2 C. & P., 196, (12 E. C. L., 86.) — 426 — Conceding that the account is to be considered as only a copy, and not an original entry of the transactions, the case is clearly distinguishable from those cited, by the fact that the witness had a distinct recollection of the several transactions independently of the paper, and was able to testify from his own recollection, after looking at the account which was used merely for the purpose of refreshing his memory. In Tanner vs. Taylor, (Mss.,) cited by Justice Buller in Doe vs. Perkins, 3 T. R., 753, “a witness who proved the delivery of goods, took it from an account which he had in his hand, being a copy, he said, of his day-book which he had left at home. It was objected that the original ought to be produced. Mr. Baron Leggb said if he would swear positively from recollection, and the paper was only to refresh his memory, he might make use of it.” We refer also to Henry vs. Lee, 2 Chitty’s R., 124; Feeter vs. Heath, 11 Wend., 485; Harrison vs. Middleton, 11 Grat., 554 ; and 1 Gr. Ev., sec. 436, and 2 Taylor’s Ev., sec. 1295. The objection made in the second exception to the manner of using the account, in that the “ witness refreshed his memory from time to time by looking at it ” while giving his testimony, seems to us to have no force. It is not material in what manner the witness’ memory is refreshed provided he can swear positively as to the transaction independently of the account after his memory has been refreshed by looking at the paper. In a long account like the one in this case, containing á great many items and dates, it would be impossible for a witness to keep them all in his memory distinctly, although he might have a perfectly distinct recollection of each, after looking at the paper, and having his mind refreshed. We proceed to an examination of the prayers, and shall first notice those of the appellant. — 427 — 1st. There was no error in refusing the first prayer, which asked the Court to instruct the jury that there was no evidence of the partnership of Denson, Buttock and Quincy. When the witness Hunter was asked who composed the firm of Denson, Bullock á Quincy, lie answered “the firm was composed of three members, Denson, Bullock & Quincy, and that Mr. Bullock was a member of the firm,” without mentioning their Christian names, which the appellant contends is not sufficient. In the absence of any evidence that there were other persons of that name, the jury would have been authorized to infer from this testimony, that the persons against whom the suit was brought, were the same persons referred to hy the witness. There was other evidence to prove the partnership, to he found in the testimony both of Hunter and Woolfork, showing the dealings and transactions hy the defendants, from which the jury might infer the existence of the partnership. 2nd. The second prayer, rests upon a supposed failure of evidence of the delivery of the articles charged. After what has been said in disposing of the first and second exceptions, showing the admissibility of the testimony of Hunter, hy which the sale and delivery of the goods were fully proved we need not gay anything more of this prayer than that it was properly refused. The testimony of Woolfork was clear and positive to the same effect. This testimony the Court was hy the defendant’s third prayer asked to exclude, for the alleged reason “that it was read hy him from a memorandum hook not made hjr himself.” This witness who was the clerk of Magruder testified “that he was present when the goods arrived, and counted the packages himself,” that the entries in the hook used hy him to refresh his memory were made hy himself at the time or hy his brother “generally in his presence and at his dictation and request.” — 428 — The Superior Court refused .the third prayer as offered, “ but were of .opinion and so instructed the jury that the entries made by Woolfork himself and his brother at his dictation and in his presence, are evidence to go to the jury, the witness having sworn that he had personal knowledge of the transaction so entered, but the entries made by his brother from his own memoranda are not evidence,” No valid objection can be made' by the appellant to this instruction. 4th. The fourth prayer is disposed of by what has before been said. It asks the Court to say that the evidence in the case is not legally sufficient to entitle the plaintiff to recover ; and we may add further that the prayer was too general, and would properly have been refused for that reason even if there was no other objection to it. But there was evidence to go to the jury of the sale and delivery, and of the price of the articles. 5th. The fifth prayer is based upon the cross-examination of the witness Hunter, by which it appeared that when interrogated with reference to several of the items in the account, not having the account before him to refer to, his memory did not enable him to testify to them accurately, and for this reason the prayer asked that all the testimony given by him in relation to the account, should be excluded from the consideration of the jury. This prayer was refused, and we think properly, the Court stating that his evidence and the reliance to be placed upon it were matters to be determined by the jury. 6th. The sixth prayer has been abandoned. ■Jfth. The seventh prayer was granted, with an addition thereto by the Court, in which we find no error. It appeal's from the record that statement of the account was given to the jury by the consent of counsel. The prayer of the plaintiff below which was granted is entirely free from objection. It states a plain proposition, to which no objection has been urged by the appellant in this Court. — 429 — (Decided 10th March, 1876.) Finding no error in the rulings below, we affirm the judgment. Judgment affirmed.