112 Mass. 108 | Mass. | 1873
The evidence of Reichardt was to the effect that he had paid the note, in three separate instalments. He also testified that every time he made a payment, a memorandum of the transaction was made on a piece of paper, which he kept in his possession ; and that Papendeik, who was the holder of the note, made a similar memorandum in a pocket book; and that these several memoranda were seen and understood by both parties, each having his attention called to what the other had written down. He also testified that this mode of proceeding was intended as a substitute and equivalent for the more convenient and usual course of indorsing the successive payments upon the note itself. This testimony, if believed by the jury, would make Papendeik so far a party to the written memorandum retained by the defendant, that it would be as competent evidence of an admission, as if it had been part of an oral conversation between them. It was not a mere memorandum to refresh the memory of a witness, but a contemporaneous record, agreed upon by the parties, each retaining a copy in his own hands, and each understanding that it was to be used and relied upon in the settlement of the transaction between them. Under these circumstances, the paper offered in evidence was admissible; the credit due to the testimony and its weight and effect were for the jury to consider. See Sandars’ Inst. Just. Lib. iii. Tit xxi. note.
Exceptions overruled.
