9 R.I. 303 | R.I. | 1869
The first three exceptions relate to the admission of testimony in regard to the contract between the plaintiffs and Talcott, the grounds of exception being, first, that the contract was res inter alios, and therefore not provable to affect the defendant; and, second, that the contract was in writing, and therefore, if provable at all, should have been proved by the writing itself. 1. We think the contract was provable, not *307 as evidence of an authority to make such a contract, but, the authority of the plaintiffs being otherwise shown, for the purpose of showing that the charges, contained in their account against the defendant, relating to the goods which had been the subject of that contract, were properly made. 2. We are not satisfied that the contract between the plaintiffs and Talcott was a contract in writing. It appears that Talcott made a memorandum of the terms of the contract, and read it over to Tillinghast, one of the plaintiffs, who assented to its correctness. Talcott thinks he affixed his initials, but is not certain. He retained it in his possession. Apparently, the contract had been completed between the parties already, when the writing was made by Talcott, he making the same solely for his own convenience. If he had not affixed his initials, it would have had value only as a memorandum, which might have been used to refresh the memory of witnesses, but which, if the witnesses could testify independently of it, it would not have been necessary to produce, though its absence would be matter of observation. We are unable to see how, by reason of the signature, it acquired the higher value which is claimed for it, the maker having retained it, so far as appears, for his individual use. If the parties had intended to unite in committing their contract to writing, it is strange that they did not also unite in signing it, or at least, if it was to be signed by only one of them, that it was not delivered to the other. And see Deshon v. Merchants Insurance Co. 11 Met. 199; Trewhitt v. Lambert, 10 Ad. El. 470; 37 E.C.L.R. 147. Upon the whole, we are of the opinion that, notwithstanding the writing, the oral testimony was not admissible, and, there being nothing to show that when admitted it was improperly used, the exceptions cannot be sustained.
The fourth and fifth exceptions relate to an entry on a book of the plaintiffs, which the auditor is alleged to have admitted in evidence, though not verified by the clerk who made the same. The book containing the entry has been taken away and no sufficient evidence is left to show what the entry was. If the admission of the entry was erroneous, the error may have *308 been too trivial to call for a re-commitment of the report. We therefore overrule these exceptions.
The error, if any, covered by the other exceptions, regards a question of fact, and, not being manifest on the face of the report, will, we think, be more properly corrected by an appeal to the jury, than by a re-commitment of the report.
Moreover, the exceptions are not supported by affidavit, and for that reason, inasmuch as they rest, in part, at least, on facts which are not disclosed by the record, they cannot be sustained.
Exceptions overruled.