Bullock v. Hunter

Bartol, C. J., delivered the opinion of the Court. The appellee residing in Hanover County, Virginia, was the proprietor of a saw mill at a station on the Chesapeake ⁴²⁴ and Ohio Railroad'and engaged in the manufacture of staves, heads, &c., for making barrels and kegs. Through the intervention of Richard W. Magruder he contracted to sell to the firm of Denson, Bullock and Quincy, of Baltimore, alhthe material of that description manufactured at his mill, at stipulated prices, he had the privilege of drawing on Denson, Bullock &• Quincy for two-thirds of the amount of each consignment. Under the contract he forwarded goods from June 1871 to August 1872, and drew regularly for about two-thirds of the amount of the several consignments, the drafts were accepted and paid at maturity, but failing to obtain a settlement of the balances due him he brought this suit to recover them.

The appellant being the only one of the defendants summoned, .the other two being returned “non sunt, ” the suit proceeded against him. No testimony was offered by the defendant below; his defence rested upon the alleged failure, and insufficiency of the proof offered by the plaintiff to support his claim. Three bills of exception were taken by him, two of them to the admission of evidence and the third to the ruling of the Superior Court upon the prayers. These will be disposed of in their order.

The first and second exceptions present substantially the same .question. The witness Hunter (the plaintiff) testifying in his own behalf, stated that he had consigned to Denson, Bullock & Quincy from his depot in Virginia certain cooper stuff consisting of keg materials and headings, and also shipped them, keg-heads and staves, and barrel-staves and heads, and stated the prices of. each, — that these shipments began in June 1871, and ended in June 1872 — and the whole amount of shipments was between $7000, and $8000, — that he had drawn on the several consignments to the extent of two-thirds of their value. The account which had been filed with the declaration, containing a particular statement of the several consign- ⁴²⁵ merits with the dates and prices, was then offered to the witness, who stated that he had examined the boobs of the O. &■ O. R. R. Co. and made it out himself from memoranda in his own possession, which he did not have with him ; that he had a distinct and independent recollection of the items charged in the account, though without the aid of the account he could not enumerate them ; objection was made by the defendant’s counsel, “but the Court overruled the objection and permitted the same to be used by the witness for the purpose of refreshing his memory as to amount and dates, and to give in evidence to the jury, his recollection thus refreshed,” and the defendant excepted. It appears by the second bill of exceptions, that after the ruling by the Court above stated, the same witness testified that he had made the shipments to D. B. & Q., which are set forth in the account, the witness testifying to these shipments, refreshed his memory from time to time by looking at the account, ho then swore positively that he had a distinct recollection of each shipment, independent of the account, and that the shipments so testified to were his own recollections, the witness further stated that the account was an original account made out by himself, from memoranda taken by himself at the time, hut not extended, and was not a copy from any book.

The defendant objected to the placing of the account in the hands of the witness, and his refreshing his memory from it, from time to time ; hut this objection was overruled and the defendant excepted. We have no doubt of the correctness of this ruling. The objection on the part of the appellant is that the account is not an original paper made by the witness at or about the time of the transactionj but a mere copy, taken from memoranda which had been made by him, and was therefore inadmissible and for this he cites, Green vs. Caulk, 16 Md., 556 ; Ward, vs. Leitch 30 Md., 326 , and Jones vs. Stroud, 2 C. & P., 196, (12 E. C. L., 86.) ⁴²⁶ Conceding that the account is to be considered as only a copy, and not an original entry of the transactions, the case is clearly distinguishable from those cited, by the fact that the witness had a distinct recollection of the several transactions independently of the paper, and was able to testify from his own recollection, after looking at the account which was used merely for the purpose of refreshing his memory. In Tanner vs. Taylor, (Mss.,) cited by Justice Buller in Doe vs. Perkins, 3 T. R., 753, “a witness who proved the delivery of goods, took it from an account which he had in his hand, being a copy, he said, of his day-book which he had left at home.

It was objected that the original ought to be produced. Mr. Baron Leggb said if he would swear positively from recollection, and the paper was only to refresh his