Practice, Civil, Auditor's report. Appeal. Evidence, Book entries, Extrinsic affecting writings.
Where the rule to an auditor contains an agreement of the parties that the auditor's findings of fact shall be final, his rulings as to the admission of evidence are subject to review by the trial court upon a motion to recommit the report on account of alleged errors in such rulings, and if the motion is denied the party aggrieved may appeal to this court.
Entries made by a dealer in his books of account are not contracts but are private memoranda kept for his own use, and in an action for the price of goods sold and delivered he can show that goods charged on his books to another person were sold to the defendant.
In an action for the price of goods sold and delivered, where the plaintiff has introduced in evidence his books of account, assumed to have been books of original entry, wherein the goods alleged to have been sold to the defendant are charged to him up to a certain date and after that date are charged to his son, the plaintiff may be allowed to introduce evidence of a conversation with the defendant's son, in which the son asked the plaintiff to make out the bills to him instead of to his father but said that his father would be responsible for them, and to show that the goods although charged to the son were delivered according to the course of business to the defendant or to his order; and this conversation is admissible to explain why the charges were made as they were irrespective of the question whether the son had authority from his father to give the directions.
BRALEY, J.
Where the rule, as in the present case, contains an agreement of the parties that the auditor's findings of fact shall be final, he becomes in effect a referee, and if his rulings on the admission of evidence were not reviewable in some form great injustice might be done. A proper motion to recommit for such errors presents the question in the first instance to the trial court, and if denied the party aggrieved may have the order reviewed by this court. Tripp v. Macomber, 187 Mass. 109. Allwright v. Skillings, 188 Mass. 538.
It appears from the report that at the hearing before the auditor not only the liability of the defendant, but the delivery of the goods was in issue. The sales were made by the plaintiff, or his clerks, and a memorandum of each sale was kept on slips of paper from which at the end of the month they were entered by them in a sales book, and then carried to the ledger. Up to a certain date these entries were in the name of the defendant, but goods sold after that time were charged on the books to his son, although no changes were made on the original slips from which the items were taken. From the language of the report it is to be assumed that the plaintiff, and the clerks who made the entries on the slips, testified in support of the charges appearing in the sales books, which thus became admissible as books of original entry to prove delivery. Kent v. Garvin, 1 Gray, 148. Gould v. Hartley, 187 Mass. 561. Field v. Thompson, 119 Mass. 151. Kaiser v. Alexander, 144 Mass. 71, 78. Such entries are in the nature of private memoranda kept by the plaintiff, and not being conclusive it was open to him to explain that notwithstanding the form in which they appeared, the goods though charged to the son were delivered according to the course of business between them either to the defendant, or to his order. James v. Spaulding, 4 Gray, 451. Commonwealth v. Jeffries, 7 Allen, 548, 564. Allen v. Fuller, 118 Mass. 402. The plaintiff's evidence of his conversation with the son, who requested that the bills for goods thereafter should be sent in his name instead of his father's, because of the latter's request and financial condition, was competent in explanation of the subsequent account. Langdon v. Hughes, 107 Mass. 272, 274. Holmes v. Hunt, 122 Mass. 505. As the evidence was admissible for this purpose it becomes immaterial to inquire whether the son was the defendant's agent by whose directions he would be bound, and the motion to recommit was properly denied.
Judgment affirmed.