193 Mass. 233 | Mass. | 1906
Where the rule, as in the present case, contains an agreement of the parties that the auditor’s findings of fact shall be final, he becomes in effect a referee, and if his rulings on the admission of evidence were not reviewable in some form great injustice might be done. A proper motion to recommit for such errors presents the question in the first instance to the trial court, and if denied the party aggrieved may have the order reviewed by this court. Tripp v. Macomber, 187 Mass. 109. Allwright v. Skillings, 188 Mass. 538.
It appears from the report that at the hearing before the auditor not only the liability of the defendant, but the delivery of the goods was in issue. The sales were made by the plaintiff, or his clerks, and a memorandum of each sale was kept on slips of paper from which at the end of the month they were entered by them in a sales book, and then carried to the ledger. Up to a certain date these entries were in the name of the defendant, but goods sold after that time were charged on the books to his son, although no changes were made on the original slips from which the items were taken. From the language of the report it is to be assumed that the plaintiff, and the clerks who made the entries on the slips, testified in support of the charges appearing in the sales books, which thus became admissible as books of original entry to prove delivery. Kent v. Garvin, 1 Gray, 148. Gould v. Hartley, 187 Mass. 561. Field v. Thompson, 119 Mass. 151. Kaiser v. Alexander, 144 Mass. 71, 78. Such entries are in the nature of private memoranda kept by the plaintiff, and not being conclusive it was open to him to explain that notwithstanding the form in which they appeared, the goods though charged to the son were delivered according to the course of business between them either to the defendant, or to his order. James v. Spaulding, 4 Gray, 451. Commonwealth v. Jeffries, 7 Allen, 548,564. Allen v. Fuller, 118 Mass. 402. The plaintiff’s evidence of his conversation with the son, who requested that the bills for goods thereafter should be sent in his name instead of his father’s, because of the latter’s request and financial condition, was competent in explanation of the subsequent account. Langdon v. Hughes, 107 Mass. 272, 274. Holmes v.
Judgment affirmed.
