Currier v. Boston & Maine Railroad

Bell, J. The first point raised relates to the admissibility of the evidence under the third count. The general rule is that a bill of particulars of demand or set-off, under a judge’s order, precludes the party who delivers it from giving evidence of any other demand not stated in it. In the present ease, the objection is not that the particulars of every item of claim upon which the party relies, was not furnished; but they are furnished under the second count, which is general indebitatus assumpsit for work, and not under the third count, which is a quantum meruit for work. Now we consider it settled, that if the particulars — 221 — are sufficient information of the demand or set-off to guard the other party against surprise, inaccuracies not calculated to mislead, will not be material. 2 Saund. Pl. & Ev. 699; 1 Phil. Ev. 490; 1 Cow. 572, note; Harris v. Montgomery, 5 Eng. L. & E. Rep. 440. In this case, the defendant was fully apprised that the object of the suit was to recover the items enumerated in the specification ; and it was impossible that it could operate as any surprise upon him that the evidence should be introduced under any count of the declaration to which it could properly, apply. The defendant could not be misled by the mistake of specifying the items under a single count, instead of under all the counts under which the evidence might be admissible. The ruling of the court below, therefore, seems to us to have been proper. The case of Tebbets v. Pickering, 5 Cush. 83, fully sustains this view. The declaration there contained a count on a promissory note and the money counts. It was objected that the plaintiff was required, by a rule of the court, to file a bill of particulars, and had not done so. The court held that the defendant had full notice of this claim from the pleadings. The note now sought to be recovered was set forth as a cause of action in one of the counts. This superseded the necessity of filing a bill of particulars setting forth the note as a demand upon which the plaintiff would rely at the trial. II. The second point relates to the admissibility of the deposition of Baron. The statute requires (Rev. Stat. 381, ch. 188, § 20,) that “ the magistrate, taking any deposition, shall certify such oath, with the time, place and cause of taking the same, and the case and court in which it is to be used, and that the adverse party was or was not present, was or was not notified, and that he did or did not object.” It is not, in terms, required that all these things should be included in a single certificate, nor does it seem to us at all material whether the magistrate includes the whole in one — 222 — certificate or more, except merely as a matter of convenience. In the present case there are two certificates, each signed by the commissioner and under his seal, and, taken together, they seem to us to contain every thing required by the statute. We see no reason why they may not thus be taken together. The statute does not require any caption, but merely that the justice should certify certain facts; neither does it require any particular form or manner of certifying these facts. We think it sufficiently appears that the oath was taken before the commissioner in the form required by the statutes. It is contended that the powers of a commissioner, appointed under the statute formerly in force, ceased by the repeal of that statute, contained in the Revised Statutes. It may be, perhaps, true, that where an office is created by statute, the repeal of that statute puts an end to the powers of the officer appointed under it. But where a statute is revised and reenacted, even with some modifications of some of its provisions, the repeal of the former statute attendant upon the revision, is a case materially different. It is not a mere repeal, but one accompanied with provisions which declare that though the statute is repealed, the same law shall continue in force. In such a case, the repeal of the statute does not affect the officer, or his powers or duties, except in those particulars in which the statute is changed or modified. And this we understand to be the effect of the repealing provisions of the Revised Statutes, (ch. 230.) By section 3, “ all acts and parts of acts, the subjects of which are revised and reenacted in the Revised Statutes, shall be repealed, with the exceptions and limitations thereinafter expressed.” And by section 8, “ all persons who, at the time when the said repeal shall take effect, shall hold any office under any of the acts hereby repealed, shall continue to hold the same, according to the tenure thereof, except those offices which have been abolished, and those as to — 223 — which a different provision shall have been made by the Revised Statutes.” Under the statute of 1830, the commissioner who took this deposition was appointed to continue in office, substantially, during the pleasure of the governor. By the Revised Statutes, it was provided that the governor, with the advice of the council, may appoint in each State, and in each district and territory, a commissioner or commissioners, to continue in office for the term of five years.” The limitation of office here prescribed is, in terms, confined to officers appointed under its provisions, and it has no application to persons then in office. The commissioners appointed and in office when the Revised Statutes took effect, were clearly continued in office, unless .they should be deemed to fall within the last exception, namely, those offices as to which a different provision shall have been made. And we think it does not fall within this class. A different provision is made as to the officers afterwards appointed, but it is confined to them, and has no reference to commissioners then in office. III. The exception, in regard to the plaintiff’s books, seems to raise two questions. These books contained the amounts of the monthly estimates of the work done and the prices, and accounts of the money received by the plaintiff upon them. The plaintiff’s clerk testified that these amounts were given him by the plaintiff’, except the prices; that the prices were entered as he understood them to be, from some one, he did not recollect whom, but it was not the plaintiff; that the plaintiff never gave him any directions to carry out the prices, nor stated to him what they were. And he had no knowledge that the plaintiff ever saw these entries. The admissions of a party, made by himself or his agents, within the legitimate scope of their authority, either orally or in writing, are admissible in evidence against him, without regard to the form of the writing. These entries, if made by the party, were clearly evidence; if properly made — 224 — by an agent, they would have the same effect. These books were kept by a clerk of the plaintiff, as his books of account, and it is not questioned that the clerk was properly authorized to enter on these books all such things as were proper to be there entered, to render the books proper books of account ; and the entry of the prices of the work done seems to us a proper matter to be there entered, and without which the accounts would be imperfect and incomplete. It was one of those things which it would be ordinarily the duty of a bookkeeper to ascertain and enter, to preserve a proper record of the business of his employer. The effect of these entries would be neutralized merely by showing that they were made upon the information of some person who cannot now be remembered, and not of the principal. It would be necessary to go farther, and to show that they were erroneous or mistaken. Without such evidence, they were admissible evidence of the prices which the plaintiff was entitled to charge for his work as against himself. There appear also to have been in these books accounts between the plaintiff and the laborers employed by him to do this work, showing the prices allowed them for their labor. It does not very clearly appear for what purpose these accounts were offered. If it was to show what prices were agreed to be paid to the plaintiff by the defendants, they were entirely inadmissible ; they had no tendency to prove any thing as to that point. If it was offered as having a tendency to prove the usual price, or market price, or reasonable price of such labor, it seems to us competent. For although there is and every where must be a marked difference between the price allowed by a contractor for mere muscular force, and that which he may claim to be allowed for the labor of the same men, when their strength is controlled and rendered effective by the exercise of his own skill, judgment and capacity for business, and aided by his machinery and capital; still a knowledge, on the part of the jury, of the price of mere muscular strength, — 225 — is one element of the computation of the value of such labor to the contracting parties in a case like this; and it has, therefore, a tendency, in some degree, to fix the value of such work. If it was offered with the latter view, it seems to us to have been competent. Otherwise it was properly rejected. > IV. The last objection relates to the profile of the work. The profile, to which the parties referred in making their contract, was not produced. Its non-production was not accounted for. Secondary evidence of its contents was offered. It was properly rejected, because no reason was shown for the absence of the original. No question is made in the argument for the defendant, of the propriety of this ruling. But it is said that it was original and independent evidence. Upon the case as stated, there is no ground for this position. If the evidence had shown that the profile produced was a duplicate of that used by the parties, it would still have been inadmissible, until a foundation was laid for its production, by proof that the original was unattainable. If such proof had been produced, perhaps the profile offered might have been admitted as being in the nature of a duplicate. The evidence that it was drawn from the original data and measurements, would tend strongly to show that it was, substantially, a copy of the original, in the same way as evidence that a lithographed plan was printed from the same drawing on stone as the original, or that a plan had been pricked off the same rough draft as the original had been. If this evidence had been offered to show the quantity of work agreed to be done, it would be inadmissible. A profile, like a plan, is but a convenient mode of exhibiting the knowledge of facts possessed by a witness. But it is the testimony of the witness to the fact of his survey and the accuracy of his plan, which constitutes the proof. Here the witness says nothing of the accuracy of the data from which the profile was made. He merely says they were the, same — 226 — from which the original was made, which is no proof of their correctness. If the absence of the original had been explained, and the profile admitted as secondary evidence, the correctness of the plan wrould not be material. The second and third exceptions being sustained, there must be a New trial.