Joseph Beinkafner and Charles Beinkafner, Doing Business as Beinkafner Brothers, Appellants, v. Fenderson-Baldwin Lumber Company, Respondent

Joseph Beinkafner and Charles Beinkafner, Doing Business as Beinkafner Brothers, Appellants, v. Fenderson-Baldwin Lumber Company, Respondent. Third Department, March 4, 1914. Evidence — action to recover for sawing lumber — competency of plaintiffs — inability to read and write. Where, in an action to recover a balance due for sawing lumber, it appeared that neither of the plaintiffs could read or write, but that they made a memorandum of each board sawed, and later, with the aid of the Lumberman’s Manual, computed the amount due and swore to the same, and the defendant introduced no evidence, it was error for the justice to decide that there was no cause of action and assess costs against the plaintiffs. • Appeal by the plaintiffs, Joseph Beinkafner and another, from a judgment of the County Court of Albany county, entered in the office of the clerk of said county on the 17th day of January, 1913, affirming a judgment of a justice of the peace in favor of the defendant. Visscher, Whalen & Austin [J. Harris Loucks of counsel], for the appellants. William A. Glenn, for the respondent. [MAJORITY — Kellogg, J.:] Kellogg, J.: The plaintiffs agreed to saw with their mill, and did saw for the defendant, the lumber on the O’Neil lot at $4 per 1,000. They swear that they sawed 82,907 feet and have received on account $282.19, leaving a balance due of $48.99. Neither of them could read or write, but when the logs were sawed they kept track of each board, with its width, length and thickness, and made a memorandum thereof at thé time, stating the number of pieces and the dimensions, and later, with the aid of the Lumberman’s Manual, computed the amount and swore to the amount sawed as above stated. The defendant introduced no evidence. The justice rendered an opinion, as follows: “ Taking into consideration the manner of keeping tally, and that the plaintiffs are not competent to keep an account that can be sworn to with a degree of certainty, I decide that there is no cause for action and assess costs on plaintiffs.” The plaintiffs were running a mill for sawing lumber. The fact that they could not read or write does not impeach their testimony or throw a doubt upon the memorandums produced by them. If the defendant had.offered evidence showing that they had not sawed the amount claimed, the manner in which they kept the account would have been a fair subject for consideration. But their evidence being uncontradicted, the determination of the justice was clearly erroneous. • The judgments of the County Court and of the Justice’s Court are reversed, with costs to the appellants in all the courts, and a new trial directed before a justice of the peace of the same county to be designated in the order, which will fix the time and place for such trial. All concurred. Judgment of the County Court and Justice’s Court reversed on law and facts, with costs to appellants in all the courts, and a new trial granted before a justice of the peace of the same county, to be designated in the order, which will fix the time and place for such trial. The court reverses the findings of fact that the plaintiffs did not saw the lumber charged, and that they have not proven the performance of the service and the value thereof.