Riley v. Boehm

45 N.E. 84, 167 Mass. 183, 1896 Mass. LEXIS 56

• Court: Massachusetts Supreme Judicial Court
• Decided: November 24, 1896
• Status: Published

Opinion

Morton, J.

The mere fact that an entry in a book is made contemporaneously with the transaction which it purports to' record does not of itself entitle it to admission as a piece of substantive evidence. It must also appear to have been made in the regular course of business, under such circumstances as to import trustworthiness. Donovan v. Boston & Maine Railroad, 158 Mass. 450.

It is for the presiding justice to say, in the first instance, whether the record is of such a character, and his decision will not be interfered with unless clearly wrong. Cogswell v. Dolliver, 2 Mass. 217, 222. Hawks v. Charlemont, 110 Mass. 110. Commonwealth v. Coe, 115 Mass. 481, 504, 505. Commonwealth v. Morgan, 159 Mass. 375. 1 Greenl. Ev. § 118, note 1. In the present case the entry which was relied on was contained in a small book, such as is usually carried in a vest or side pocket, and was used for making memoranda in regard to any matter which for any reason the defendant desired to note. We cannot say that the court was not justified in holding that the character of the book gave it no standing. Moreover, the book was offered, not as containing an entry relating to the cash in question, but as showing from the absence of an entry that the money was not paid as the plaintiff said that it was. That is, the argument was, that if the defendant had received the money he would have entered it in the book, and because there was no entry he did not receive it. This was inadmissible. Morse v. Potter, 4 Gray, 292.

Neither of the two letters which were offered by the defendant and excluded was competent. The first was by the firm of which the defendant was a member to the plaintiff, and contained no reference to the subject matter of the suit. It is difficult to conceive on what ground it was offered and the defendant has not argued that it was admissible. The other letter was from the defendant to his partners, and also contained no reference to the subject matter of the suit. It was entirely res inter alios.

If the testimony of Murphy was incompetent, as the defendant contends, it did him no harm. But we think that it was admissible to corroborate Paquin. It tended to fix the date, which was in dispute, when Paquin said the plaintiff gave the defendant money. Exceptions overruled.