180 Mass. 483 | Mass. | 1902
This is an action upon a promissory note against the executrix of the will of the alleged maker, one William Childs. The consideration was denied, and evidence of admissions by Childs that the plaintiff had lent him money having been put in by the plaintiff, the defendant offered Childs’s bank pass book of the time of the alleged advances, and a ledger, kept by Childs personally, seemingly containing all cash receipts
As we understand it, the pass book and the ledger were offered together, and the objection to them was general. Therefore we do not consider objections peculiar to the pass book open. Moreover, as Childs had adopted the statements of the pass book, not only, to all appearance, by accepting it as correct, but in his own account, or at least had made the same statements in his own handwriting, we should not sustain the exceptions unless the ledger also ought to have been kept out. It is argued ingeniously that the testimony as to Childs’s admission was brought out on the re-examination of the plaintiff in order to explain or make definite a matter that had been opened by the cross-examination, and that when a plaintiff is compelled in this way by the other side to introduce oral testimony of a statement of the deceased, that is not supporting the cause of the action by' such statement within the meaning of St. 1896, c. 445, so as to let in the memoranda by force of the act. It is said further that, the judge clearly having had this statute in mind when he let in the evidence, it does not appear that he found the entries to have been made in good faith as an exhaustive statement of moneys received, and that therefore the admission cannot be justified under St. 1898, c. 535. It is argued further that even if otherwise admissible the ledger could not be used to prove a negative, citing Riley v. Boehm, 167 Mass. 183, 187, Sanborn v. Fireman’s Ins. Co. 16 Gray, 448, 455, Morse v. Potter, 4 Gray, 292.
We are of opinion that the evidence was admissible and admissible to prove a negative. It may be that a case might present a difficulty such as is supposed by the plaintiff’s counsel. We assume that the matter of Childs’s admissions was first opened by the defendant. But nothing appears to indicate that the plaintiff was compelled to pursue the matter or that he did so for any other than the obvious purpose of laying hold of and reinforcing a piece of testimony favorable to his side. We therefore are of opinion that the conditions existed for the
Exceptions overruled.