Sturtevant v. Wallack , 141 Mass. 119 ( 1886 )

Holmes, J.

1. The evidence that the engine and fan had been embraced in a suit and settlement between Tudor and the defendant seems to have been admitted as tending to contradict Tudor’s testimony in the present case, which, as we understand it, was to the effect that he ordered them in the defendant’s name, and by his authority, in which case, of course, Tudor would have had no claim upon the defendant in respect of them. If we are to infer that a part of the evidence introduced for this purpose was that a release was drawn, excluding the engine and fan, that this was rejected by the defendant, and that a general release was drawn and signed afterwards, this, of course, would tend to show that, at that time, Tudor was understood to make a claim in respect of them, and might lead to the inference that they were embraced in his suit. But it could not be said to lead to the latter inference as matter of law, or to make it the plaintiff’s duty to produce the record of the Tudor suit. The record was equally accessible to both parties, and, if the inference sought to be established by the defendant was true, would have helped him as much as, in the other event, it would have helped the plaintiff. Secondary evidence of the contents of the record was put in by both sides, without objection. It was for the jury to say what inference, if any, they would draw from the failure to produce a certified copy. See Eldridge v. Hawley, 115 Mass. 410. If the court was called on to select a piece of evidence for comment at all, which seems to have been competent only by way of contradicting a witness, the instructions given seem to us entirely correct.

2. The fact that the engine and fan were shipped at once to the defendant, distinctly marked with his address, was properly left to the consideration of the jury, in connection with the other circumstances of the repeated sending of bills to him, the letter demanding payment, and the draft, coupled with the fact that the defendant made no reply. We do not say that the marking of the cases alone would have been evidence against the defendant, and we readily admit that it is not every charge, however expressly made, that calls for an answer. Percy v. Bibber, 134 Mass. 404. Commonwealth v. Eastman, 1 Cush. 189, 215. Commonwealth v. Harvey, 1 Gray, 487, 489. Commonwealth v. Kenney, 12 Met. 235, 237. But when a charge is of such a kind that, according to common experience, a man would naturally repudiate it if unfounded, the fact that it was made and not repudiated may be left to the jury. We cannot say that it might not have been found properly, that, if the defendant had denied Tudor’s authority to charge him with the machinery, he would naturally have written to the plaintiff that he was sending his bills to the wrong man, and must look to Tudor. Commonwealth v. Kenney, and Commonwealth v. Harvey, ubi supra. Hayes v. Kelley, 116 Mass. 300. And this evidence having been admitted, as it was, without objection, all the circumstances, including the marking of the cases, were to be considered by the jury.

Exceptions overruled.