CUMBERLAND GLASS MANUF. CO. v. ATTEAUX

Evidence, Best and secondary. Witness, Contradiction. In an action upon a contract guaranteeing sales made by the plaintiff to a certain corporation, of which at the time the guaranty was executed the defendant owned substantially all the stock, the defendant testified that before the sales to the plaintiff were made he had withdrawn from the corporation, had transferred all his shares to a person who was the treasurer of the corporation, and in an interview with the plaintiff had informed him of his withdrawal and had notified the plaintiff that he no longer would guarantee the debts of the corporation, to which the plaintiff had assented, saying that a formal notice revoking the defendant's guaranty would be unnecessary. All of this was denied by the plaintiff, who testified that he never had received any notice of a revocation of the guaranty or of the defendant's disposing of his interest in the corporation. The plaintiff called as a witness the person to whom the defendant testified that he transferred his shares in the corporation, and who was its treasurer. This witness testified that all the books of the corporation had been lost or destroyed and could not be produced. He also testified that he could not remember how many shares of stock the defendant had, nor how many he himself had, nor what other persons held stock, nor whether or not the defendant had transferred his shares. The corporation was organized in another State. The plaintiff offered in evidence a certificate of the secretary of state of that State certifying to a copy of a record of a return, purporting to be made by the witness as treasurer of the corporation. The return purporting to be signed by the witness was dated one year after the time when the defendant had testified that he had transferred all his shares to the witness, and contained a list of the stockholders, in which the defendant was put down as the holder of a large number of shares. The witness was shown the certificate and was asked whether he made the return of which the certificate purported to be a copy. He answered that he did not remember, but that he was required to make such a return once a year, and that if he made that return he thought it was correct. Subject to the exception of the defendant the judge admitted the certificate in evidence for the purpose of showing that the witness "made such a report, and for no other purpose." Held, that the plaintiff was entitled to show that one year after the time when the defendant testified that he had transferred his shares they still stood in his own name, that, in view of the loss of the books of the corporation and the inability to produce them and of the want of recollection of the treasurer as to who were the stockholders or whether the defendant had transferred his shares, a copy of the record of a return purporting to be signed by a person bearing his name and occupying the office which it was shown that he occupied was admissible as some evidence to show that the witness was the same person who filed the return, and that this evidence, taken in connection with the testimony of the witness that if he made the return it was correct, had a tendency to show the truth of the statements contained in it; also, that this evidence did not contradict the testimony of the witness called by the plaintiff, as it was not inconsistent with his statement that he did not remember; also, that the matter on which the statements in the return tended to contradict the defendant was not an immaterial one, as the truth of the defendant's statements as to his ownership of the stock had a material bearing upon the probability of the ground of defense set up by him.

HAMMOND, J.

As bearing upon the probability of the defendant's story that before the delivery of the goods in question he had informed the plaintiff's president that he was about to sell out his interest as shareholder in the Grocers Specialty Company, and his further statement that in pursuance of that intention he did thereafter, in the latter part of 1898, sell his shares of stock to Ward, we think the plaintiff was entitled to show that as late as November 1, 1899, such a conveyance had not been made.

In view of the evidence of Ward, who was the treasurer of the Grocers Specialty Company, that many of the books of the corporation had been destroyed, that after search made by him he could not find the stockbook, did not know where it was or whether it had been destroyed, and his want of recollection as to who were the stockholders or whether the defendant had transferred his shares, the copy of the record purporting to be signed by a person bearing his name and occupying the office which it was shown he occupied was admissible as some evidence to show that the Ward who testified was the same Ward who filed the certificate. Binney v. Russell, 109 Mass. 55. Only for this limited purpose was it admitted. The proof that the certificate was made by the Ward who testified, when taken in connection with his evidence upon the stand that if he made it he thought it was correct, had a tendency to show the truthfulness of the statements therein contained. See Atherton v. Emerson, ante, 199.

It is argued by the defendant that the evidence was not admissible to contradict Ward, called by the plaintiff, but the answer is that it did not contradict him. He had not testified to anything inconsistent with the return. He had simply said that he did not remember. Nor was the certificate inadmissible upon the ground that it tended to contradict the defendant upon an immaterial matter. The truthfulness of the defendant's statements as to his ownership of stock had a material bearing upon the probability of the ground of defense set up by him.

Exceptions overruled.