Majority
p. 105Stephen Johnson, App’lt, v. Joshua V. Van Name, Resp’t. (Supreme Court, General Term, Second Department, Filed February 11, 1889.)
Headnote
1. Assumpsit—Goods sold and delivered—Evidence.Where in an action to recover a balance on a book account of oysters there was evidence showing that the plaintiff shipped them; that the shipments ivere written down as they were made; that the memorandum so made was compared with the defendant’s books, and that the accounts agreed, Held, sufficient to sustain a judgment in favor of the plaintiff.
2. Evidence—Books of account—Power of referee to admit.
Where the plaintiff’s account books were before the referee as evidence, unless there was something he could not see, such as careful erasures or other facts calling for expert testimony, the rejection or admission of evidence in relation thereto is properly left with him.
Action brought to recover a balance on a book account of oysters sold and delivered by plaintiff to defendant. The complaint alleged that the plaintiff sold and delivered, at different times, to the defendant, oysters to the amount of $600; that the defendant had paid on account $395, leaving a balance due of $205. The defendant claimed that there was only fifty-two dollars due the plaintiff. The referee found for the plaintiff for the full sum of $205, and from that judgment the defendant took this appeal.
Calvin D. Van Name, for app’lt; Ingraham & Allen, for resp’t.
—The proof clearly shows that the plaintiff sold to the defendant 120 barrels of oysters at five dollars per barrel, amounting to $600 in value.
The plaintiff testified that he shipped them, and directed his daughter to write down the shipments as they were made. The daughter supports the plaintiff in this statement, and the plaintiff further testifies that he compared the memorandum so made with the defendant’s books, and the accounts agreed. The defendant admits the price per barrel, but “did not receive as much as 120 barrels.”
p. 106
The amount of payments is also made the subject of dispute. The defendant gave evidence tending to show that the balance was about $50, and the-plaintiff to the effect that there was over $200. The referee has found the balance at $225, and there is nothing in the evidence calling for a reversal of the finding. The evidence offered in respect to the appearance and order.of the dates in the plaintiff’s account book was properly rejected. The book was before the referee as evidence, and unless there was something he could not see, such as careful erasures or other facts calling for expert testimony, he was the proper person to trust with the evidence.
The judgment should, therefore, be affirmed, with costs.
All concur. . .