Thomas Gilchrist, Respondent, v. The Brooklyn Grocers' Manufacturing Association, Appellant

Thomas Gilchrist, Respondent, v. The Brooklyn Grocers’ Manufacturing Association, Appellant. (Argued December 16, 1874; decided January 19, 1875.) To entitle a memorandum to be read in evidence, it is indispensable that the witness should verify the handwriting as his own. In an action to recover the purchase-price of a quantity of potatoes, alleged to have been purchased by plaintiff as agent for defendant, and shipped to the hitter by canal, defendant claimed a deficiency in quantity, as shown by the weight of the boat and cargo, at a weigh-lock upon the canal. Defendant called a witness who testified that, in his belief, tiie entry on the weigh-book was in his handwriting, and, if so, he weighed the boat, and it was weighed correctly; he then stated the weight from the entry. On cross-examination it appeared that the witness had no connection with the weighing lock, but occasionally weighed boats; that he could not swear the entry was in his handwriting, and that he had no recollection of the matter, independent of the entry; lines were drawn over the entry in the book, and an entry appeared under date two days later, in another hand, of the weight of the boat. Plaintiff moved to strike out the evidence as to weight, which was refused. Reid, error. Appeal from an order of the General Term of the Supreme Court, in the third judicial department, reversing a judgment in favor of plaintiff] entered upon the report of a referee, and granting a new trial. This action was brought to recover for 200 barrels of potatoes, alleged to have been purchased for the defendant by plaintiff] together with fifty dollars for freight, advanced in transporting them from Glens Falls to Mew Fork by a canal boat, and for commissions, storage and other expenses. Defendant admitted directing the purchase, but claimed a deficiency in filling the barrels, equal to seven barrels; and that the potatoes, instead of being the kind ordered, were of a mixed and inferior quality, which required picking over and assorting, and sets up a counter-claim for the depreciation and expenses. Defendant also counter-claimed for over payment upon a former account rendered, by reason of the inferior character of the potatoes shipped and charged therein, and for an overcharge of quantity, and for the charges of labor and storage thereof. Also for the careless, negligent and improper conduct of the plaintiff, in paying for a larger quantity of potatoes than were, shipped and delivered to the defendant, and that inferior quality of potatoes, and mixed qualities, were shipped and delivered, instead of those directed to be purchased. The referee found, among other things, in reference to two boat loads of potatoes shipped by plaintiff to defendant, as follows: “ That said boat loads of potatoes were weighed at Waterford, in the weigh-lock, on Champlain canal, on their way to Brooklyn, and that by such weight, which I find to be correct, the boat Emma Flora had 224,600 pounds; the A. F. Williams, 195,000; making, on both boats, 419,600 pounds, which being divided by seventy, the number of pounds plaintiff agreed to furnish for a bushel, gives 5,9941-bushels, to which add 500 bushels, the amount which I find the 200 barrels contained,' and it gives 6,494|- bushels, which I find is the whole number of bushels -of potatoes shipped on said two boat loads by plaintiff, which being deducted from 7,237 bushels, the amount claimed by plaintiff, leaves 742§ bushels, which number of bushels I find plaintiff had charged as furnished, and been reimbursed for by defendant, besides storage and commission on the same at price agreed, more than he had in fact purchased for and delivered to defendant,” and for the amount of this alleged deficiency he allowed defendant as a counter-claim. The only evidence as to the boat “ Emma Flora ” was by a witness, Peter Waldron, to whom, while on the stand, a book was presented, containing an entry of the weight of this boat of the date of November 10th, 1868. He testified : “ To the best of my knowledge and belief, if that is my handwriting, I weighed the boat; think it is my handwriting; to the best of my belief, the boat was weighed correct.” * * * Upon cross-examination he testified: “ I won’t swear positive the entry is in my handwriting.” * * * “ I was then acting as clerk in the collector’s office; as such I had nothing to do with weighing boats.” * * * “ I have no recollection, independent of this book; I have no knowledge of the accuracy of these scales.” Plaintiff’s counsel moved to strike out the evidence of this witness as to weight, on the ground that it was, incompetent and inadmissible, stating grounds, etc.; the motion was denied, and plaintiff excepted. The witness was then further cross-examined, and said: “ I know my own handwriting generally; I don’t know why black lines are drawn on the entry; this is entered on another page, under the head of November twelfth; it is entered in somebody’s handwriting that I don’t know.” * * * “ For aught I know, it was weighed on the twelfth by some other person; there is nothing in the book that I can swear positively is in my handwriting.” Plaintiff renewed his motion to strike out this testimony on the same grounds as before. Motion denied, and exception. Witness was further cross-examined: “ I won’t swear I weighed the boat on November tenth or twelfth; I have no recollection of weighing any boat that day; I have no recollection of making any entry of the weight of any boat that day.”' Then, on a further direct-examination, he said : “It resembles the book that was used for keeping the weight of boats. * * * Van- dercar was weighm aster; assistants, George H. Van derwerker and James H. Connolly. Occasionally, in their absence, I weighed boats at their request; when I weighed a boat, I made an entry on the book.” On further cross-examination he said: “ I had no assistant to help me when I weighed; I was not sworn as weighmaster or assistant.” Plaintiff again renewed the motion to strike out, on same grounds; motion denied, and exception. A. H. Tanner for the appellant. A. D. Wait for the respondent. To make a memorandum evidence, it must be proved that the witness made it himself at or about the time of the transaction, and knows it was correct when made. (Halsey v. Suisebrogh, 15 N. Y., 485; Russell v. H. R. R. R. Co., 17 id., 134; Marsly v. Shultz, 29 id., 346; Gay v. Mead, 22 id., 462.) [MAJORITY — Church, Ch. J.] Church, Ch. J. As the order does not specify that the reversal of the judgment, by the General Term was upon questions of fact, we must assume that it was upon questions of law, and we can therefore consider only such questions. A material question is as to the competency of the memorandum, attempted to be proved by the witness Waldron, of the weight of the boat “Emma Flora” and cargo, at the weigh-lock at Waterford, and whether his evidence was sufficient to support a judgment based upon the accuracy of the weight thus .obtained. It does not appear that the memorandum was formally offered in evidence, but the substance of it was stated by the witness in connection with his testimony, and its competency and sufficiency were expressly challenged by motions to strike out the evidence, which were denied, and exceptions duly taken. The referee finds that the weight of the boat and cargo was correct; and as this is the only evidence to justify the finding, if that is not sufficient, the exception to it presents a question of law. The defendant gave no direct evidence that the plaintiff had not purchased, paid for, and shipped at Glens Falls the quantity of potatoes claimed by him, nor that such quantity was not received by the defendant at Brooklyn; but the deficiency was sought to be proved solely by the weight of this and another boat and cargo at the intermediate weigh-lock at Waterford. The witness, had no official connection with the weigh-lock. That was under the control of an officer and assistants, appointed for that purpose. He was a clerk in the collector’s office, the duties of which are distinct from those of weighmaster; although he stated that he occasionally weighed boats, at the request of the officers at thé weigh-lock. When shown the entry in question, he stated that if it was his handwriting he weighed the boat, and he believed that the boat was weighed correct; but on cross-examination he repeated several times that he could not swear positively that the entry was in his handwriting; that he could not swear to making the entry, or weighing the boat, and had no knowledge of the transaction except from what appeared on the book. The entry bore date, ¡November 10th, 1868, and as shown at the trial, black lines were drawn over it, and the same entry was made in another place under date of ¡November twelfth, in another handwriting, which the witness could not identify. The evidence was insufficient to justify the finding of the referee. It is indispensable to entitle a memorandum to be read, that the witness should verity the handwriting as his own. This is the foundation of such evidence. The witness was unable to state a single fact, which made the memorandum of any value as evidence. He had no recollection of weighing the boat, and could not swear that he made the entry. The fact of making the memorandum should be proved with a degree of certainty, which leaves no room for doubt. Without this such evidence is a mere shadow. It will not do to found an inference upon a mere guess. (15 N. Y., 485 ; 17 id., 134; 29 id., 346; 22 id., 462.) The force of this entry was also greatly weakened, if not entirely destroyed, by its being defaced, and a similar entry made by some one else under date of ¡November twelfth. Ho explanation was given of this, and neither the weighmaster, nor either of his assistants was called. It is quite as reasonable to infer from all the evidence that the boat was weighed on the twelfth, and not by the witness Waldron, and that the date ¡November tenth, referred to the issuing of the clearance, but whether this was so or not, the evidence is too weak and uncertain to sustain the finding of the referee. This error is sufficient to justify the order of the General Term, reversing the-jndgment, and ordering a new trial, and it is unnecessary to notice the other points made. The order of the General Term must be affirmed, and judgment absolute ordered for the plaintiff for $624.43 and interest from December 4th, 1871, with costs. All concur. Order affirmed and judgment accordingly.