Cohen v. Bogatzky

¹³⁶ Offutt, J., delivered the opinion of the court. This appeal was taken from- a judgment of the Baltimore City Court for $229 in favor of the plaintiff in an action of assumpsit on the common counts, brought by Leon Bogatzky, the appellee, against Harry Cohen, the appellant. The action was brought to recover the price of certain materials used by Bogatzky in 1922 in painting a bank building at 1394 West North Avenue in Baltimore City, at the request of Cohen. The record contains six exceptions.

Five of these relate to rulings of the court on questions of evidence, and one to its rulings on the prayers. The fourth and fifth exceptions were not pressed and need not be considered. The issue in the case was whether Bogatzky had supplied the material sued for and whether the prices charged therefor were reasonable. In support of that issue he offered six witnesses, of whom only one had any direct knowledge of what materials were actually used in painting the building.

Bogatzky himself was in bad health at the time, and did not work on the house at all, although he visited it for five or ten minutes a day while his men were at work on it. He ordered the material used in painting it from Morris H'avis, a paint dealer, but apparently had no personal recollection of what he ordered or the price 'he paid for it, or whether what he ordered was delivered. He only knew that material which he had ordered sufficient for the work was delivered at the defendant’s building, and used- by his men in painting it. * y Morris Davis, the paint dealer, testified that he had delivered “paint lead and other items of paint” at the building for the plaintiff, but said nothing as to the quantity or prices of what he delivered. Louis Shapiro, who repainted the building after Bogatzky’s men had stopped work on it, said that Bogatzky’s men had done painting on the building, that there was nothing wrong with the work they did, and that when they stopped they could have completed the work in two or three days. ¹³⁷ Henry Erdman knew that the plaintiff had painted the building and that the work was well done.

Benny Sacks, the foreman in charge of the work, on his direct examination testified that of his own knowledge the material “sued for in this case had been used on that job,” and that he had used 700 pounds of putty on it, hut on cross-examination he admitted that he did not know in detail the quantities of the different materials used on the job, except the putty, hut that they had given it three coats of paint, and he further testified that when they stopped work on the building be asked Cohen “if there was anything bad with the work,” and he replied, “No, nothing of the kind.” Ida Kosen, the plaintiff’s daughter, acted as his bookkeeper. On her direct examination she was handed the itemized account annexed to the declaration filed in the case, and testified that she had prepared it from a book which she kept, containing apparently her father’s accounts. The items in the book were made from duplicate slips which her father got from the paint store and handed to her, and which were destroyed after she had entered them. After she had given this testimony, she was asked, “What material went into that particular job?” to which the defendant objected, but the court overruled his objection and that ruling is the subject of the second, and the only substantial, objection bund in the record.

In answer to that question she repeated in the same words the items as set forth-in the account annexed to the nar. It subsequently developed upon the cross-examination of Big witness that many of the entries in the book were not made by her at all, although that testimony was not before the court when it ruled on the question, as the appellant failed to ask the privilege of cross-examining the witness as to the entries before the ruling. • So that, as the record stood at that time, it appeared that all the entries in the book were made by the witness in her own handwriting from slips obtained from the paint dealer by her father of materials which he had ordered to be delivered on that job. But even assuming that to be true, it is not apparent ¹³⁸ upon what theory this evidence was admitted. The slips, from which Mrs. Rosen made the entries in the hook which she brought into court, were made by Mr. Davis, the paint dealer, or some one in his employ, and Mr.