Gould v. Hartley

73 N.E. 656, 187 Mass. 561, 1905 Mass. LEXIS 1052

Opinion

Lathrop, J.

While the plaintiff to prove some of the items of the account put in evidence memoranda with the defendant’s signature attached, as to the other items the only offer of proof was a book alleged to have been kept by the plaintiff in the usual course of his business. This book was kept by a clerk in the office of the hotel, who had no personal knowledge of the items of goods sold by the cigar department and the bar department of the plaintiff’s hotel, and whose only knowledge was derived from slips sent to his office from these departments by a bell boy. The original slips were not produced, and neither of the employees who had charge of the bar or the cigar department was called to testify.

Under these circumstances we are of opinion that the judge erred in admitting the book in evidence. This was decided in Kent v. Garvin, 1 Gray, 148, and the rule there laid down has been recognized ever since to be the law. Harwood v. Mulry, 8 Gray, 250, 252. Miller v. Shay, 145 Mass. 162. Donovan v. Boston Maine Railroad, 158 Mass. 450, 453. The books of a bank stand on a different footing. Produce Exchange Trust Co. v. Bieberbach, 176 Mass. 577, 587.

Exceptions sustained.