Walker v. Curtis

116 Mass. 98, 1874 Mass. LEXIS 31

• Court: Massachusetts Supreme Judicial Court
• Decided: October 1, 1874
• Status: Published

Opinion

Gray, C. J.

The findings of the presiding judge upon preliminary questions of fact material to the competency of evidence introduced at the trial are not open to revision in this court, and the bill of exceptions does not show that either of his rulings was erroneous in matter of law.

I. If the papers in Pratt’s handwriting were memoranda of the results of his examinations and calculations, or minutes which helped to explain such memoranda made by him, in the scope of his employment as surveyor under the agreement of both parties to this action, they might properly, he being dead, be admitted in evidence. Kennedy v. Doyle, 10 Allen, 161, 166, 168. Washington Bank v. Prescott, 20 Pick. 389. Jones v. Howard, 3 Allen, 223. Eastern Union Railway v. Symonds, 5 Exch. 237.

2. The plaintiff’s books do not appear to have been admitted as independent evidence of the whole number of days’ work, but in connection with his foreman’s estimates of the number of yards one man would dig in a day, and how many yards should be deducted from the aggregate on account of some of his men not being actually occupied in digging. Such estimates, made by a witness of competent knowledge, might be submitted to the consideration of the jury. Carpenter v. Wait, 11 Cush. 257. Holyoke Paper Co. v. Conklin, 2 Allen, 326. Cornell v. Dean, 105 Mass. 435. Miller v. Smith, 112 Mass.

Exceptions overruled.