Davis v. Olson , 130 Me. 473 ( 1931 )

Barnes, J.

Suit was brought in 1929 to recover a balance claimed for money and merchandise on an account current for more than five years. The declaration was on account annexed.

Plaintiff died before hearing, and the case was brought to trial and is prosecuted by her executrix.

At the trial, April Term, 1931, “three separate sheets of paper” were offered in evidence as the original entries of the items contained in the account annexed to the writ.

What the sheets would show was supplemented by testimony that the words and figures on the several sheets were written by the plaintiff.

But it appeared in testimony that more than was contained in the memoranda may have been incorporated in the count in the writ. .

The witness was of counsel in the case, and argued before this Court.

He testified that the plaintiff took the three sheets from her pocketbook, in his office, and handed them to him during an interview previous to the bringing of the suit.

When asked whether from that memoranda he prepared the account sued on, he replied: “I did from that memoranda and I won’t say positively whether all the account which I prepared is on that memoranda, but while she was there I prepared the account from the memoranda, and possibly from her memory, I wouldn’t say.”

On objection the sheets of paper were excluded, and exceptions taken.

The Justice, at trial, had before him the memoranda sheets. He had in mind the previous rulings of this Court on the question of their admissibility as expressed in Mansfield v. Gushee, 120 Me., 333 and the authorities there cited.

If we are to review his finding it is a prime essential that the sheets offered in evidence be made a part of the bill of exceptions. This has not been done. They are not before us. Without the papers that were excluded we can not overrule the trial court.

Exceptions overruled.