George v. Bartlett

22 N.H. 496

• Court: Superior Court of New Hampshire
• Decided: July 15, 1851
• Status: Published

Opinion

BelIi, J.

The witness introduced by the • plaintiff was cross-examined, in the expectation, apparently, that he would recollect the account of ten dollars, as being a paper presented to the former administrator, and as being the subject of a conversation, in which it was substantially admitted, that there were items of claim made by the defendant, the note for ten dollars and interest, and the cash payment of ten dollars, though there was a controversy whethér if29.70, the amount credited by the defendant, was so much as he ought to allow. If the witness had recollected this, by the aid of the paper, the evidence would be competent and material. But he did not so recollect. He admitted the figures appeared like his, but did not recollect that he had ever seen the paper or figures before. On what ground then did this paper or these figures become admissible ? Not we think, because they are shown to be truthful memoranda made by the witness, of statements and admissions made by the parties, in his presence, and written down while they were fresh in his recollection ; for if that appeared, they would be competent; nor because they, of themselves, bear evidence of any thing, as against the defendant.

The evidence, tending to prove that by the usage or custom of the mill the slabs were retained by the millman, as part of his compensation for sawing, and that this usage was known to the intestate, might perhaps be admissible in a case where there was no evidence as to the precise nature of the contract between the parties, or where there was room for debate as to the question whether there was a special contract, or whether the contract applied to the matters ordinarily regulated by the custom. But here there was full and undisputed proof of a special contract to saw, for a third of the stuff after sawing. This contract is of course to be construed according to the natural import of the terms, and we take the word stuff to include the whole material after sawing. If the boards, only, had been intended, we think there are few persons who would not have said one third of the boards, just what they meant. If it is intended, by the usage of the will, one third of the stuff means one third of the boards, and nothing more, the evidence should have gone to that point.

This view of the. stipulations of the contract is confirmed beyond question, by the evidence that the defendant agreed to purchase of the plaintiff’s intestate, and to pay him for his share of the slabs. Now it does not well lie in the mouth of the defendant to allege that these slabs were the right of the mill, after thus agreeing to buy them.

Judgment on the verdict.