At the argument before the court, counsel for the defendant abandoned all of the exceptions taken at the trial but two, both of which relate to the sale of the Boyce execution.
The first raises the objection that the plaintiff cannot maintain an action in his own name for the recovery of that item, because, at the time of its sale, he did not own it. But ownership is not the test, nor is it material whether the plaintiff contracted in respect of the execution as principal or agent; for if Boyce is to be regarded as the owner, it is enough to enable the plaintiff to maintain an action upon the defendant's promise that it was made to him personally by Boyce's appointment, and that he had an interest or property in the subject-matter of it. Porter v. Raymond,
The second raises the question whether the plaintiff's account book, containing a charge to the defendant of the execution, was competent evidence to prove its sale. According to all the authorities it was not; in fact, counsel for the plaintiff have not argued to the contrary. But they contend that the book was admissible as a memorandum made by the plaintiff at the time the execution was delivered to the defendant. To this contention there are two decisive answers at least: first, the report of the referee shows that the book itself was received and weighed by him as competent evidence; and, second, the reported facts show that it was not admissible as a memorandum because it did not come within the established rule, which is, that a memorandum can only be read in evidence when the witness verifies it as having been true when made, has since forgotten the transaction, and is not able to recall it after examining the memorandum so as to state it from memory. Kelsea v; Fletcher,
There must be a new trial as to the execution; but for the balance *Page 691 of his claim, that is, for the items of $50.34 and $19.74, the plaintiff is entitled to judgment on the report.
Ordered accordingly.
CLARK, J., did not sit: the others concurred.