Keith v. Kibbe , 64 Mass. 35 ( 1852 )

By the Court.

The day-book of the plaintiffs was not competent for the purpose for which it was allowed to be introduced. The controversy was not as to the items or time of delivery of the timber. It was conceded that the amount was furnished by the plaintiffs, and was used in building the defendant’s house. But the defendant denied that he was the purchaser, and insisted that the same was sold by the plaintiffs to one Rollins, the contractor for building the house. It was a mere question as to the party who was the debtor to the plaintiffs for these articles. And in this aspect of the question, the plaintiffs could not properly be allowed to introduce their own charges for the timber made against the defendant as the debtor, to aid in sustaining their case. The case of Ball v. Gates, 12 Met. 491, cited by the plaintiffs, differs materially from the present, as there was other evidence relied upon to charge the defendant as the debtor, and the book was offered to show merely the items delivered.

Exceptions sustained: verdict set aside.