Home/Second Circuit/Merrill v. Sullivan

Merrill v. Sullivan

68 F. 509, 1895 U.S. App. LEXIS 2887
CourtCourt of Appeals for the Second Circuit
DecidedMay 28, 1895
StatusPublished
Cited by3 cases

This text of 68 F. 509 (Merrill v. Sullivan) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Merrill v. Sullivan, 68 F. 509, 1895 U.S. App. LEXIS 2887 (2d Cir. 1895).

Opinion

PER CURIAM.

The suit was brought to recover §4,122.87, for labor and materials in repairing the engines of the yacht Norma. After the libel was Oled, the claimant paid libellant $2,000 on ac[510]*510count. The district court referred it to a commissioner to take proofs and report the amount due. Libellant was employed to put the engines in repair and fit them up thoroughly in the best manner and as rapidly as possible, but no price was agreed upon in advance. The libellant served a bill of particulars, which fills 20 printed pages of the record, and avers in his libel that the work done and materials furnished were necessary and were reasonably worth the sum of $4,122.87. The issues raised by the pleadings were as to the doing of the work and furnishing the materials set forth in the bill of particulars, and as to the reasonable value thereof.

The report of the commissioner is simply: “In my judgment, the libellant has clearly proved his case, and I find that there is due him a balance [after crediting the $2,000] of $2,109.12.” This is $18.75 less than libellant’s claim, but the commissioner does not state what item or items he disallowed or reduced.

In the absence of any discussion of the case by the commissioner, it is wholly impossible to ascertain by what process of reasoning he reached his conclusion. . There was evidence sufficient to sustain a finding that the prices charged for specific items in the bill were reasonable and customary. There is also abundant evidence to show that a great deal of work was done and much material furnished, and it is possible from the testimony to state, in general terms, the character and extent of libellant’s services with sufficient fullness to enable persons familiar with work of that kind to estimate its value. A hypothetical question which recited the facts thus proved elicited from a witness called by the claimant an estimate of $2,200. No similar question was - ut to any of libellant’s witnesses, and none of them who gave any estimate of a lump sum for the work had sufficient personal knowledge of what was done to testify to the value, except in reply to such a question. Presumably, the commissioner, reached the conclusion that the libellant had proved his bill of particulars (except as to items aggregating $13.75) by competent evidence, but we fail to find such proof iu the record.

The bookkeeper who made up the bill had but little personal knowledge of the correctness of any of the items. He made up the account from, memoranda furnished to him, by foremen or other employes of libellant. When he had transcribed the several items from the memoranda to the account, he destroyed the memoranda, with some few exceptions. Under the rule laid down in Mayor, etc., of New York City v. Second Ave. R. Co., 102 N. Y. 572, 7 N. E. 905, it was competent to prove, the charges by the testimony of the bookkeeper, who transcribed them from the temporary memoranda (which were substantially slate entries) supplemented by testimony of the persons who made the memoranda that such memoranda, to their own knowledge, were correct. The bill contains items of charge under 38 different, dates. The character of these items is well illustrated by the charges under date of June 29th.

June 29.
1 file.I. .50
1 lubricator. 2.90
[511]

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Tin Decorating Co. of Baltimore v. Metal Package Corp.
29 F.2d 1006 (S.D. New York, 1928)
Morse Dry Dock & Repair Co. v. Susquehanna S. S. Co.
289 F. 436 (Second Circuit, 1923)
Manchester Assur. Co. v. Oregon Railroad
79 P. 60 (Oregon Supreme Court, 1905)

Cite This Page — Counsel Stack

Bluebook (online)
68 F. 509, 1895 U.S. App. LEXIS 2887, Counsel Stack Legal Research, https://law.counselstack.com/opinion/merrill-v-sullivan-ca2-1895.