Goodrich v. Coffin , 83 Me. 324 ( 1891 )

Peters, C. J.

The plaintiff’s intestate, in his life-time, had an account against the defendant for lumber, upon which a balance ivas due when he died. After his death the plaintiff, his administrator, and the defendant had frequent conversations about the bill. The administrator relies on an agreement upon an account stated between himself and the defendant, and we are unwilling to say that an agreement of the kind was not proved by such conversations. The frequent admissions and promises of payment made by the defendant to plaintiff may not unreasonably be considered as having established an understanding in their minds that a certain balance was due and should be paid.

It is contended by the defendant that the testimony of the plaintiff, who testifies to the declarations of the defendant, is not sufficient to establish an agreement, because it does not identify any fixed and certain sum, as the balance to be joaid; and, further, that any deficiency in that respect cannot be supplied by evidence outside of the parties themselves.

It is true that the amount of the bill was not named by either party in the interviews sworn to by plaintiff, for the reason, probably, that the sum was so clearly fixed in their minds that there was no occasion to speak of it. The promises were to pay the bill, that bill, the balance, and the like. Each party knew exactly what was referred to. The sum was implied as clearly as if spoken.

It is not true, however, that the amount of the bill cannot be legally proved by other evidence. Mr. Greenleaf says, on this exact point, 2 Ev. § 126, "If the amount is not expressed but only alluded to by the defendant, it may be shown by other evidence that the sum referred to was- of a certain and agreed amount.” This seems a consistent rule. Suppose the agreement referred to a note of hand, or written contract, or article of personal property, and allusion should be to that note, contract, or article, it would certainly be natural to rely on any satisfactory evidence to prove the identity of the thing alluded to. In the present case defendant’s words spoken to a third person are the proof of amount.

And in this connection another objection is taken against the plaintiff’s proof. The testimony of third persons was received revealing declarations made by the defendant to them. The defense contends that the peculiar contract, relied on in this case, cannot be made with a stranger to the contract. That is very true, but strangers may testify to declarations of the defendant which corroborate the testimony of the plaintiff, or prove any independent fact having relevancy to the issue. Eor such purpose only was such testimony received.

A further objection presented by the defense is that there is an absence of proof that the lumber originally sold was ever surveyed by a sworn surveyor as required by law. The statute requires official survey only when lumber is sold by the thousands of feet, and not when sold by quantity without survey. Richmond v. Foss, 77 Maine, 591.

The action not being prosecuted on an account for lumber sold, but on an agreement upon an account stated, although involving a lumber account, we think the burden rests on the defendant to show that any illegality taints the account. The statute is very severely penal, and illiberal constructions of it need not be cultivated. The lumber may have been sold in lump or by quantity, without necessity of survey.

Motion and exceptions overruled.

Libbey, Emery, Foster, Haskell and Whitehouse, JJ., concurred.