
    Clinton West, Resp’t, v. Thomas Van Tuyl, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 23, 1888.)
    
    Evidence—Labob book—When admissible—How pboved.
    To prove the account oí work done the defendant produced “ Exhibit M.” This book was kept as follows: Each person engaged in the mill kept a tally of his work on a planed shingle. At the end of the day these tally, boards were delivered to the persons keeping the book, who made the entries from them. The entries were proved by all the persons keeping the taller boards, who testified they were correctly kept, and by the persons making the entries. Held, that this book was competent and . properly received in evidence. Following Mayor, etc., v. Second Are. B. B. Go. (2 N. Y. State Rep., 526; Ot. of App.)
    Appeal from a judgment entered on the report of a referee.
    
      Jay K. Smith, for app’lt; M. Rumsey Miller, for resp’t.
   Dwight, J.

The actions (four in number, consolidated and tried as one) were to recover on claims based upon or growing out of a written contract between the parties, for services to be rendered by the plaintiff to the defendant.

The work to be done consisted of cutting and hauling the timber from a tract of land belonging to the defendant, and manufacturing it into lumber of various kinds at the defendant’s mill. Plaintiff was also to make sales of the product of the mill and of the bark; to do such custom sawing as should offer; to account for all moneys received; and to have his pay at certain rates on the various kinds of lumber and other material sold or produced.

The defendant was to repair all breakages about the mill, not caused by neglect, and the plaintiff was to assist in making such repairs without charge.

The work was to have been done in two years, from November 1; 1879; but extensions were made from time to time, and it was continued until December, 1882, when it was terminated by notice from the defendant.

Several other contracts were made between the parties during the three years for particular work outside of, but subsidiary to, that covered by the principal contract.

In February, 1881, the parties had a “partial settlement” of their accounts, resulting in an exchange of receipts “ without prejudice.”

In September, 1882, the parties agreed that the plaintiff should render his account, and the defendant pay for each week’s work thereafter at the end of the week.

One of the actions was for a balance on four weekly statements; one for work done under special contracts in 1882; one for a balance on the principal contract of August, 1879, and for damages by reason of respondent’s failure to furnish proper machinery, and to keep it in repair; and one for the wages, board and lodging of his men when at work for the defendant in making repairs on the mill; and for work done under special contract made in 1880.

The mill, and part of the lumber manufactured, were destroyed by fire in November, 1882.

The trial of the four actions, consolidated into one, involved a revision of the partial settlement of February, 1881, and a full accounting of all the dealings between the parties from that time to the close of the work in December, 1882. The report, embracing a statement of the account, found a balance due from the defendant to the plaintiff of $1,187.59, for which amount, with costs, judgment was ordered for the plaintiff.

There were no requests to find by either party, nor any exceptions to any finding of fact or conclusion of law. The only questions, therefore, which are presented by the record on this appeal are those raised by the defendant’s exceptions, to rulings by the referee in the admission and exclusion of evidence.

Of these rulings, the most important was that which admitted in evidence the book, known in the case as “Exhibit M. ” which contained the defendant’s account of the work done in the mill under the principal contract (“ Ex. A.”), after the partial settlement in February 1881, and before the system of weekly statements was adopted in September 1882.

The evidence on the part of the plaintiff showed how this book was kept and the data from which the entries were derived. Each person engaged in the mill, either in sawing, facing, planing or matching lumber, or in sawing shingles or lath, kept a tally of his work on a planed shingle or tally board; putting down the name of the owner of the logs or lumber if it was custom work, or, if for the defendant, indicating that fact. At the end of the day these tally boards, were taken to the house where the book was kept by Mrs. West and delivered to her. From these she made the entries, the same day, of the amount of work done for each customer or for the defendant; giving as on the tally board, the name of the customer or person for whom the work was done; and opposite, the number of feet of lumber' sawed, planed, etc., and the number of MS. sawed of shingles or lath. Undoubtedly the entries in the book were not mere transcriptions from those on the tally boards, but involved a certain amount of figuring on computation, at least to the extent of footing up the figures of the latter. Sometimes this footing was done by the head sawyer; if not it was done by the person making the entries in the book. These Mrs. West testified she always made except for a period of about three days, when they were made by the plaintiff.

The entries were supported by the evidence of all the sawyers who kept the tallies on the boards, to the effect that the latter were correctly made, from correct measurements made by themselves, at the time; and by the evidence of Mrs. West and her husband that the tallies were correctly footed and these footings correctly entered in the book as it appeared on the trial. The several acts described were done by the persons charged with the several duties, and in the regular course of their employment.

These facts, we think, fairly bring the case within the reasoning and the rule in the case of The Mayor v. The Second Avenue R. R. Co. (102 N. Y., 572 ; 2 N. Y. State Rep., 526), which sustains the admission in evidence of a time-book kept by a general foreman in the employ of the superintendent of public works, from reports made to him daily by gang foremen of the names of men at work each day, and the time of each man ; the ultimate fact to be established being the number of days’ labor performed in making the repairs with which the defendant was to be charged. In that case the court (Andrews, J.) say the book was clearly not admissible on the testimony of either the gang foremen alone, or of Wilt (the general foreman who made the entries in the book) alone; “ but combining the two there was, first, original evidence that laborers were employed, and that their time was correctly reported by persons who had personal knowledge of the facts, and that their reports were made in the ordinary course of business, and in accordance with the duty of the persons making them, and in point of time were cotemporaneous with the transactions to which the reports related; and,, secondly, evidence by the person who received the reports that he correctly entered them, as reported, in the time-book in the usual course of his business and duty.” And the book of the general foreman was held competent evidence as consisting of original memoranda.

All the elements of the case thus analyzed are present in the case in hand. The additional circumstance that footings of the figures on the tally boards were made by persons who testify that they made them correctly, does not affect the admissibility of the evidence in question. It is of no consequence whether the footings were made by the persons who set down the figures on the tally boards, or by the bookkeeper who entered them in the book, so long as they were correctly made ; and the liability to error was likely to be less in the latter case than in the former. The argument ex necessitate in the case cited, applies with at least equal force in this case. It is difficult to see how by any other practical mode of proof the ultimate fact of the amount of each particular class and description of lumber manufactured in that mill could have been established.

There is much force, also, in the suggestion that the book was practically the book of the defendant. There is evidence to show that he knew of the manner in which it was kept; that he had settled the business of the first year and a half, on the basis of an account kept in the same manner; and that he received his pay for custom work done in the mill according to the charges contained in this same account.

The case of The Mayor v. Second Avenue R. R. Co. (supra), is clearly distinguished by the court from that of Peck v. Valentine (94 N. Y., 569), cited by the appellant, and in which the same judge wrote the opinion.

We think there was no error in the admission in evidence of “Exhibit M.” It was received, like the book in the case of The Mayor v. Second Avenue R. R. Co., not as a book of account but as original memoranda.

The defendant also objected to the admission of evidence in support of the plaintiff’s claim for the services of his hired men and teams in repairing breaks, on the ground that, by his contract, the plaintiff was to assist in repairs without charge. In the absence of any specific finding or request to find, on the subject, we must assume that, the referee construed the contract, in that particular, as requiring only that the plaintiff should give his personal assistance, and not that he should employ men and teams, in the work of repairs, at his own expense; and this construction we think was clearly the proper one.

We do not think the question of error in the allowance, of compensation to the plaintiff for manufacturing lumber, not sold, is fairly raised by any exception in this record. But if it was so we should be inclined to support the finding of the referee, in that respect. There was nothing in the contract which bound the plaintiff to sell all the lumber manufactured within any specified time. The limitation of two years applied only to the working up of the logs; and he was prevented from selling any more of the lumber by the destruction of a large part of it by fire, without his fault, and by the peremptory termination of the contract by the notice of the defendant. Under those circumstances the plaintiff was clearly entitled to a pro rata compensation for cutting and sawing the lumber not sold.

There is no other exception in the case which seems to require consideration. The judgment should be affirmed.

Barker, P. J., Haight and Bradley, JJ., concur.  