274 Mass. 364 | Mass. | 1931
This is an action of contract brought by the plaintiff as assignee under written assignments of all rights which the J. F. Gerrity Company, hereinafter called the company, had against the defendants. The answer of the defendants is a general denial and payment.
In this action the plaintiff seeks to recover of the defendants a sum of money for lumber alleged to have been sold by the plaintiff’s assignor to the defendants. At the trial to a jury in the Superior Court it was agreed by the parties to the action “that the lumber that is set out in the account annexed and in the declaration was shipped by the lumber company and delivered to someone”; and it was admitted by the defendants that at “some stage” the defendant Ralph P. Sylvester received these shipments of lumber in some capacity. No question is raised as to the quantity, quality or value of the lumber so shipped. It is stipulated to avoid further litigation that the admitted assignment by the company to the plaintiff of its rights against the defendant Ersilia N. Sylvester, dated December 2, 1929, may be treated as of June 2,
On the motion for a directed verdict for the other defendant the facts as they warrantably could have been found by the jury are as follows: Prior to June, 1926, the company had had no dealings with either defendant. In June, 1926, the president of the company, one Gerrity, and a salesman of the company, one Tobey, went to the home of the defendants in Winchester, Massachusetts, and there saw and talked with them. In the presence of the president and the defendants, Tobey said: “I have sold these people some lumber, and as I am more or less green with the Gerrity Company I thought you had better come out and see if everything is all right and if the arrangements are satisfactory.” The president testified that he had looked over the order, the tentative order that they had given, and what they wanted; that he talked at this interview with Sylvester and asked him about it, and told him that he had called up the credit bureau and asked about his credit; that he asked Sylvester if it would be satisfactory to him and Mrs. Sylvester to charge the materia] jointly to Ralph P. and E. N. Sylvester; that Sylvester said that he proposed to pay practically cash and “ it didn’t make any difference to him to whom it was charged ” ; that Gerrity said it might make a difference to the company in the future, and asked him if it would be all right, and Sylvester said “he thought so”; that he then said, “ Mrs. Sylvester, is this satisfactory to you?” and Sylvester said, “I don’t think she can answer because she
Following this conversation the company made certain shipments to Winchester, Massachusetts, and opened a new account in its ledger sheets which, when offered and received in evidence, were objected to by the defendants on the ground that “ They are self-serving statements, so far without any evidence that Mrs. Sylvester authorized this account.” The record does not disclose that any exception was taken by the defendants to the admission of this evidence. These ledger sheets of the company showed the account of Ralph P. Sylvester and Ersilia N. Sylvester, 366 Main Street, Winchester, Massachusetts, for 1926, 1927,' 1928 and until June 14, 1929. The date of the first invoice was June 15, 1926. Statements were sent on the last day of each month, from the time the orders started until shortly before this action was brought, addressed to R. P. and E. N. Sylvester, 366 Main Street, Winchester. After each order came in to the company from its salesmen, invoices were made out on the firm’s paper and the original confirmation was sent to the customer. During the course of the business with Sylvester there was a time when the company got promissory notes on account, payable to the order of the company and signed by Ersilia and Ralph Sylvester.
On January 12, 1927, the company, according to its records, was owed $2,742.94 by Ralph P. Sylvester and E. N. Sylvester. There was evidence that about January 12, there were substantial orders and several sales; that just before the last named date the indebtedness as shown by the account was $2,200, and was higher than it had been for some time, and by January 25, the indebtedness was increased to $5,841.99.
On January 12 the company wrote a letter to Ralph P.
The defendant Ersilia N. Sylvester on the same ground further excepted to the admission of a letter dated May 27, 1929, and addressed to “Ersilia N. & R. P. Sylvester.” This letter reads as follows: “We want to acknowledge your kind letter dated May 25. We notice that Mr. Sylvester signed this letter as trustee. We do not know what he is trustee of but it would indicate to us that he wants to escape personal liability on his account with us. Is this correct? We also note that you intend to be in here this week with the amount which you owe us, which is approximately $2,500. We are willing to wait until the end of the week and after that time we will not wait any longer but will certainly bring suit against you both.” She now contends that, even if the “ letter . . . dated May 25 ” had been produced or had been "offered in evidence, that the. letter received in evidence, while a possible reply to the letter of Sylvester and admissible against him, was not admissible against her.
On January 16, 1929, the company sent the following telegram to the defendant Ersilia N. Sylvester: “You using us badly please come in here and settle your bill in full ”; and on May 2, 1929, sent to her the telegram which reads: “ Care R P Sylvester 366 Main St Winchester Mass kindly be at this office Friday morning
On the above facts we do not think the letter of January 12, 1927, was obnoxious to the objection that it was self-serving and therefore inadmissible in evidence. The letter was written just after the receipt by the company of unusually large orders from the defendants and was a
Exceptions overruled.