Newell v. Borden

128 Mass. 31, 1879 Mass. LEXIS 164

• Court: Massachusetts Supreme Judicial Court
• Decided: November 28, 1879
• Status: Published

Opinion

Gray, C. J.

The defendants were not a corporation, and any record of their doings, if admissible in their favor, would not be the only evidence of facts stated therein. Oral testimony that they had passed a vote authorizing the acts of Borden was competent to show that the other defendants were jointly liable with him. The fact that one of them, who acted as clerk of the meeting, had since destroyed the informal minutes which he had taken for the purpose of preparing a record, afforded no reason for depriving the plaintiff of the benefit of his testimony. The exclusion of this evidence, and the ruling that there was no evidence of a joint liability to be submitted to the jury, were therefore erroneous; and the verdict must be set aside, both as to Borden and as to the other defendants; and it is unnecessary to consider what, if any, effect could legally be given to the answer in abatement first filed by Borden in the Superior Court after judgment against him on the merits in the District Court, or to the verdict rendered upon the answer in abatement so filed. Exceptions sustained.