307 Mass. 571 | Mass. | 1940
In this action upon an account annexed for goods sold and delivered to the defendant by the plaintiff’s intestate, an account book of the latter, showing $505.40 to be due, was received in evidence under G. L. (Ter. Ed.) c. 233, § 78. The defence was that the indebtedness was discharged by merchandise accepted by the plaintiff’s intestate. There was a verdict for the plaintiff, and the case is here on the defendant’s exception to the admission of evidence.
The evidence in question was the testimony of a witness for the plaintiff that eight weeks before the plaintiff’s intestate died he told the witness that the defendant owed him more than $500, had paid $5 on account, and had promised to pay by instalments. The judge found that the conditions of G. L. (Ter. Ed.) c. 233, § 65, were satisfied.
The defendant contends that the evidence was inadmissible because it was a conclusion to which the plaintiff’s intestate would not have been permitted to testify if living.
In general, the statute making admissible the declarations of deceased persons does not remove any ground of objection except the rule against hearsay. Pappathanos v. Coakley, 263 Mass. 401, 407. But the statute is construed liberally (Matter of Keenan, 287 Mass. 577, 581), and makes admissible every declaration within its terms made upon personal knowledge. Nagle v. Boston & Northern Street Railway, 188 Mass. 38, 40. Mere opinion based upon facts not known to the declarant through his own senses is inadmissible. Little v. Massachusetts Northeastern Street Railway, 223 Mass. 501, 504. Hasey v. Boston, 228 Mass. 516. Keough v. Boston Elevated Railway, 229 Mass. 275, 277-278. Barney v. Magenis, 241 Mass. 268, 272.
Indebtedness is not mere opinion, but fact capable of being within personal knowledge, even though it may depend upon or be mixed with law. Wigmore, Evidence (3d ed.) § 1960. Windr am v. French, 151 Mass. 547, 551. Haskell v. Merrill, 179 Mass. 120, 123. Reggio v. Warren, 207 Mass. 525, 533-536. Kerr v. Shurtleff, 218 Mass. 167, 173. MacLeod v. Davis, 290 Mass. 335, 338. Lyman v. Romboli, 293 Mass. 373.' Where indebtedness or some similar concept
Although we have found no case precisely like the present one, there are cases arising under the statute that are like this in principle. In Dow v. Dow, 243 Mass. 587, 594, 595, it was intimated that a declaration by a deceased person that he had paid all he owed for certain land, was admissible. In Crowe v. Bixby, 237 Mass. 249, 251, the declaration of a deceased tenant that she had hired a tenement from the defendant for $12 a month and he had agreed to keep it in repair, was said to be admissible. In Heathcote v. Eldridge, 226 Mass. 168, an action for money lent by the plaintiff’s intestate, where the defence was that the money was the price of stock sold to her, her declaration that she had lent the defendant the money to buy an automobile was admitted. In Polvere v. Hugh Nawn Contracting Co. 215 Mass. 199, 204, a declaration by an injured man who later died that his parents abroad were in need of his remittances, was held competent. In Bates v. Cohasset, 280 Mass. 142, 154, a declaration that the land in dispute was always known as common land, was admitted. In Supple v. Suffolk Savings Bank, 198 Mass. 393, a statement of a deceased person named as beneficiary of a savings bank deposit that the depositor had money belonging to him which he could not get, was admitted. In Ellis v. Felt, 206 Mass. 472, an action for washing clothes of a deceased person, his declara
Exceptions overruled.
