224 Mass. 135 | Mass. | 1916
The principal defendant, John H. Pension, hereinafter referred to as the defendant, was indebted to the plaintiff company for plumbing supplies to the amount of $726.09 and on April 13, 1912, forwarded his check for $378.98 on account
The defendant introduced in evidence a bill on which appeared a payment stamp of the plaintiff company. The assistant cashier of the company, Frances J. Mahoney, testified that this receipted stamp was “blanked out.” She further testified as follows: “Q. What do you mean by saying it is blanked out? A. Why, put a line through it, — a mark to show it was cancelled. — Q. What line do you refer to? A. A lead pencil line. — Q. Written like an M? That is your writing, is it? A. Yes, to blank out the paid stamp. . . . — Q. Why did you put on the paid stamp? A. Why, I made a mistake, if I stamped it. Of course, I do not know that I have stamped it, but I have done it before. — Q. You have done it before? A. Yes, sir. — Q. That is, made mistakes before? A. Yes, I have. ... — Q. Is there any way that you can tell definitely that this pencil mark was yours? A. No, there is not. — Q. The form of it — does that bring to your attention anything? A. I don’t know what you mean. — Q. Well, is that the usual way? A. Yes. — Q. That you cross out a paid stamp when put on in error? A. Yes, sir.”
Later one Slattery, the cashier of the plaintiff company, was called by it as a witness. After testifying that he now observed a pencil mark through the stamp on the receipted bill, he was asked, “Have you seen similar pencil marks on other statements, receipted in the same manner by Miss Mahoney?” On objection the trial judge
The burden is on the plaintiff, as excepting party, to show that this question was competent, and that it was prejudiced by the exclusion of the answer thereto. There was no offer of proof, but we assume that the witness would have answered “Yes.” It is now argued by the plaintiff that this testimony was admissible to show that the “M” shaped pencil mark was a symbol which the assistant cashier was accustomed to use as a cancella
In other words, in the absence of any offer of proof and statement as to the purpose for which the question was being asked, the judge understood and had a right to understand that its purpose was to show that similar pencil marks had been made on receipted bills by Miss Mahoney on other occasions, in order that the jury might infer therefrom that she had made the mark on the receipt in controversy. The evidence was not competent for that purpose. The fact that Miss Mahoney made similar marks on some other occasions had no tendency to prove that she made the mark in question. Hamsy v. Mudarri, 195 Mass. 418. Commonwealth v. Rivet, 205 Mass. 464. She already had testified that when she made such a pencil mark over a paid stamp, she did so-to indicate a cancellation.
Exceptions overruled.
Bell, J. The jury found for the defendants; and the plaintiff alleged exceptions.