138 Mass. 63 | Mass. | 1884
This is an action of contract to recover for an alleged wrongful dismissal from the office of clerk of the defendant corporation. The defendant denies the plaintiff’s appointment, and excepts to the exclusion of oral testimony by the trustees that he was never elected or employed in fact. The plaintiff introduced a record of a meeting of the trustees on May 9, 1883, signed by himself as clerk, to the effect that “Luther Bodman of Northampton was chosen president, and Winthrop Delano clerk,” with a pencil line drawn through the last four words. A great part of the argument before us was addressed to the question whether, under the circumstances of the case, the record was conclusive of the plaintiff’s election, or whether the fact could be shown. We think that there is another consideration which disposes of the case on somewhat different grounds.
As we have said, the testimony on this point was directly contradictory. The trustees swore that, when the words “and Winthrop Delano clerk,” in the record of May 9, were read, one of them said, “ That is a mistake; that ought to be corrected ; there was no clerk chosen; ” and that the president said, “ The record will stand as corrected.” The president testified that the plaintiff made the pencil correction at that meeting. The jury was instructed to find for the defendant, if the record was corrected as testified. This was an issue on a fact directly discernible by the senses, and parties who had testified to what they did discern by that means were not' entitled, as a matter of right, to fortify their testimony by swearing to other facts merely for the purpose of making it more probable that what they said upon the principal point was true. This was not a case where evidence had been introduced tending to show improbability, which the defendant desired to meet. No evidence was offered that the plaintiff was elected in fact, except the record of May 9. The conclusiveness of that record was made by the court to depend upon the fact in issue, that is, whether it was approved. The record of May 9 unapproved was not treated or relied on as raising any presumption of fact that what it recited was true; for the plaintiff admitted that he was not in the room on May 9, that no one reported to him
We may add, that, on the plaintiff’s admission, coupled with what the trustees were allowed to testify, the defendant seems practically to have had the benefit of the fact excluded, so far as it bore on the probabilities as to what happened on June 6.
Exceptions overruled.