820

FEDERAL REPORTER.

FLINT

et al. v.

.

(Oircuit Oourt, S. D. New York. February 18, 1888.)
1.

WITNESS-ExAMINATION-REFERENCE TO MEMORANDA.

In an action for the price of goods sold and delivered, plaintiffs' agent testified that when taking the order"he had made a memorandum of the items and prices of the goods, which, in a few days afterwards, he rewrote upon a ticket, from which in turn plaintiffs' order clerk entered the items in an orderbook. When the goods were delivered, he had checked each item in the order-book, and thereby knew that the'order-book contained a true copy of the order. Held, that the witness having examined the entries in the order-book the transaction was recent, he could refer to them upon the trial for the purpose of refreshing his memory, although they were made by another person.

2.

EVIDENCE-SECONDARy-CONTRACT BY TELEGRAM AND LETTER.

·In an action for the price of goods sold and delivered, plaintiffs' agent testified that he had received an order fr9m defendant by telegram, which was replied to by letter, and a person sent to take necessary meaaurements. The telegraph company had destroyed all 'llUJmoranda in its possession relating to telegrams of the date of the transaction in question. Plaintiff had not preserved defendant's original telell;ram, nor any copy of the letter in reply, but 'th'e witness who took the measurements 'testified that he saw and conversed with defendant upon the subject of the order. Held that, in the light of his secondary evidence of the contents of the telegram was admissible, although direct proof of the sending of it could not be given. evidence of the contents of a letter sent by plaintiffs to defendant was objected to upon ,the ground that the letter was not shown to have been mailed. Plaintiffs' agent had testified that he knew it was sent. Held, in the absence of any proof to the contrary, or any further inquiry as to the mode of sending, the testimony that the letter was sent must be understood to mean that it was mailed in the usual manner.

8.

SAME-PRESUMPTION-PROOF.

At Law. On motion for new trial. Abram Kling, for plaintiffs. Wm. D. Guthrie, for defendant. SHIPMAN, J. This is a motion by the defendant for a new trial of an atlaw upon the ground of admission of testimony. The action was to recover the sum chtimed to be due from the defendant merchandise, consisting mainly of furfor a large quantity of goods niture, which had been delivered to him by the plaintiffs. The defense was that the amount for which the goods were contracted to be furnished hadbee,n substantially paid. Thep,oint in was whether the in certain rooms upon the first floor of the, defendant's house was included in the original ap.d verbal contract for articles to be furIl:price,not tp exceed a specified sum, which contract was made by Mr. Scott, the plaintiffs' agent, with the defendant, at Corpus Christi, and was not included Texas, ,or; .VI:'as SUbsequently, o.rdered by in the original order and estimate of prices.' The latter was the plaintiffs' theory of the case. It being important to show the items of the . original order, Scott, the plaintifls' witness, testified that he made a
I

See note at end of case.

FLINT V. KENNEDY.

821

memorandum of the items and prices in Texas; that, upon his return to New York, about two weeks afterwards, he made, from his memorandum, "a yellow ticket," which purported to be a copy of the order, and that the order clerk entered or copied the contents of the yellow ticket in the For the purpose of refreshing the memory of the witness as to the items of the order, the plaintiffs' counsel asked that he be permitted to examine the order-book, which request was, at that stage of the testimony, refused. The law upon the subject of refreshing the memory of a witness by memoranda of a business character, which he made himself at orabout the time of the transaction, is stated in Maxwell v. Wilkin8on, 113 U. S. 656, 5 Sup. Ct. Rep. 691, as follows: .. Memoranda are not competent evidence by reason of having been made in the regular course of business, unless contemporaneously with the transaction to which they relate. It is well settled that memo1'anda /tre inadmissible to refresh the memory of a witness, unless reduced to writing at or shortly after the time of the transaction and while it must have been fresh in his memory." If such a :memorandum was made in the usual course of business by any other person, and was read by the witness within the time which has been stated, he can refer to it for the purpose of refreshing his memory, if, when he read it, he knew it to be correct. Steph. Dig. Ev.192. Permission to examine the book was refused, because the witness had not testified that, from an examination of the made in the progress of the, business, he knew that it was a correct copy of his own memorandum. He was apparently endeavoring to refresh his recollection from a copy, made by another person, which he had not testified he knew, when the transaction was fresh in his mind, to be a correct <lOpy of the order which he received. Subsequently the witness testified that, on the day after the goods were shipped, he checked each item in this order-book, for the purpose of signifying the items of the order which had been delivered, and that this checking was done by comparison with the items in the order-book, and that he knew that the goods entered in the order-book were the same goods which were contained in the original In reply to the question, "How do you know that [the book] is a copy of the order?" the witness replied, "I checked off every item on this ticket when the goods were delivered to Capt. Kennedy." This testimony in regard to the checking upon the order-book, at or near the time of the shipment, for the purpose of ascertaining and verifying the fact that the goods named in the order had been delivered, and a knowledge then and thereby, from this careful inspection, acquired that the order-book contained a correct transcript of the original order, supplied the defects in the testimony as previously given, and, under the statement of the law which has been quoted, the court properly permitted the witness to examine the book for the purpose of refreshing his recol. lection as to all the items of the order. The next exception related to the following facts: It was proved that .all original telegrams sent at the date of the transactions in question, and .all copies of, or memoranda in regard to, the receipt such telegrams in

822

FEDERAL REPORTER.

the New York office of the telegraph company had been destroyed. Scott testified,under objection, that,subsequently to the original order, he received, in New York, a telegram purporting to come from the defendant, containing the additional order in regard to the three lower rooms, and asking instructions in regard to measurements. For the purpose of showing that this telegram was sent by the. defendant; Scott testified that 'a' letter in reply was written, and was sent to the defendant by Mr.: Hand, then a member of the plaintiffs' firm, but now dead, which acknowledged the receipt of the telegram, and said that a person would be sent to take the measurements. Klein, the person who was sent, testified that he went to Corpus Christi, took the measurements, talked with the def!Judant upon the subject, and was informed by him that he,hat;! intended to have these rooms done by his own carpenter; but after Scott left, he changed his mind. The defendant testified that he nevel"sentthe telegram, and did: not receive the Hand letter. He did not bring from Texas any oithe correspondence. 'fhe testimony in regard to the telegram was objected to upon the ground that secondary evidence of the contents of a telegram cannot be giveI!., until the actual sending of the message, by the party sought to be charged with its contents, is proved. It is true that the original dispatch must be shown to have been authorized or sent by the alleged sender or by his direction. U. S. v. Babcock, 3 Dill. 571j Steam-Ship 00. v. Otis, 100 N. Y. 446, 3 No,E. Rep. 485. 'But it was not incumbent upon the plaintiffs to prove from the lips of thedefendallt, or of some person who saw him send the dispatch,that it was thus sent. If, by the subsequent correspondence or transactions between the parties, the alleged sender is found to have shown by his conduct that he did send the telegram in question, such testimony is often .sufficient to prove the required: fact, and to be as satisfactory evidence as a verbal admission. t:3team-Ship 00. v. Ot18,100 N. Y.,446,3 N. E.Rep. 485. . In this case, the secondary evidence in regard to the telegram was not received until the testimony in regard to the Hand letter had been offered and admitted, Jor the .purpose of shOWing from the 'circumstances and conductof Kennedy an ackno'\'I'ledgment that the telegram had been sent. I;the testhnony ofScott and Klein was truej it was s.trong evidence that a telegram bad been sent by Kennedy. The difficulty was, in consequence of the non-existence of the telegram, and the loss of the copy whicb was. said to have been received by Scott. the non-copying, of tbe Hand letter in; the. firm's the steadfast denial of Kennedy' that he, ElVjer sent such a telegram, to know whether Scott's testimony was reliable. ' , Its weight was a question for tbe jury, but it was admissible up.on the just principle which has been stated. A minor exception was also: taken, upon the motion for a new trial, to the admiasion. of the in. regard to· the Hand letter, upon the ground that it was not shown to have been mailed. Scott testified that heknewit was sent. No further examination or cross-examination upon the subject of mailing was had. "In tbe absence of any proof to the contrary, or any in':!uiry as to ,the mode, we must understand this [that

DEERE V. COUNTY OF RIO GRANDE.

823

letters were sent] to mean that they were mailed in the usual manner. n Steam-Ship 00; v. Otia, 81.Ip1'a. The motion for anew trial is denied.
NOTE.

WITNBSs-;-REI!'BESH1NG MEMORy-MEMORANDA.. A3J.y or memoranda made by the witness, or by his direction, at the time of the transaction, or soon afterwards, or read and examined by him he at the time having personal knowledge of the ness thereof, may be referred to, to refresh the memory of the witness. Price v. Garland, (N. M.) 6 Pac. Rep. 472. A witness who has taken memoranda of facts at or about the time of the occurrence, and who knows them to be correct, may hold IIUch memoranda, in his hand, and testify to the facts as facts, although he at the time admits that.he dQEls not remember the occurrence of the facts. Lipscomb v. Lyon, (Neb.) 27 N. W. Rep. 731. A, may use a paper containing a list of items to refresh his memory, when he knOWII the entry to have been correct when he, made it, eveD, though the paper is not admis!rlble as an entry made in the course of business in a book of original entries.' MeM v. White., (Pa.) 8 At!. Rep. 918. A witness may refer to and read the items in his pr'ivatecash.book as memoranda of payments to refrellh his reoollectioll. , Converse v. Hobbs, (N. H.) 5 At!. Rep. 882. A plaintiff, testifying in hia OWT' behalf, can refresh his recollection, when he knows the facts, by reading from hill bill of particulars, when that is a duplicate of the account rendered, and on whic;h he sues" even tho]1gh it was copied by hlll clerk from entries in his book, as to which he cannot say, Without seeing them, whether or not he made them 'himself. Hudnutt v. Comstock, '(Mich.) 16 N. W. Rep. 157. Where the items are numerous, and therefore diftleult to be retained in the memory, the court, in its discretion, may permit a reference to memoranda proven to be correc.EJ.!loth as to items and their values. Wise v. Insurance Co.,(N. Y.} ,4 N. E. Rep. 684. w nere an attorney who was present ,at the former triaJ" rellresenting one of tlleparties the case, is ca1ledto give in evidence the testimony of a deceased witness at that trial, he may refresh his recollection from the bill of, exceptions, or read from the bill of exceptions purpClrting to contain the testimony of the deceased witness at the former trial, if he shows that, he examined the bill, and ll,8sisted in its preparation at the time it was made and knew· when' the matters therein contained were fresh in his memory, that the bili stated .ceased witness testWed to on the fOrmer trial. Railroad C(J. v. Jones, (Kan.) 8 Pac. Rep. 730. If a condUctor of a railroad train be sworn, he may use a written statement, nIade atthe time of an accident under consideration, as to how itoccurred, to refresh hismemory. RaUw", Co.v. May, (N. J.) 5 Atl. Rep. 276. See, also, on the gqneral subjeot as to when are admissible to refresh tne memory of a witness, U.S. v. Ten,ne,y, (Ariz,) 8 Pac. ReP 29,5; Morris v. Lachman,' (Cal.) rd, 7!l9;paige, v. Carter, .. (Cal.) 2 Pac. Rev. ,260; People v.LeRoy,(Cal.) 4 Pac. Rep. 649; PinSchowers (Nev.) 1 Pac. Rep. .

(Ct'rcuit Vourt, D. Colorado.

STATUTES-REPEAL-EFFECT TO

January 18, 1888.)

TAKE AWAY REMEDY. Tbe right of a creditor to enforce by mand",mU8 tbe levy and collection of a poll·tax. if necessary for the payment of his debt, il not abridged by the subsequent repeal of tbe act authorizing sucb tax.

Application for Writ of MandarnWl. This was an application by Charles Deere for a. writ of mandamWl to compel the board of county commissioners of Rio Grande county, Colorodo, to levy a tax. The defendant answered, and plaintiff filed demurrer thereto. Well8, McNeal & Taylor, for plaintiff. W. M. Maguire and E. F. Richardscm, for defendant.