Watts v. Sawyer ( 1874 )

1. The memorandum, signed by the defendant, dated Sept. 23, 1871, was very clearly sufficient, within the statute of frauds.

2. I cannot conceive what ground there is to claim that there was no breach, by the defendant, of his contract, to take and pay for the goods. Hartwell testified that on October 23, 1871, he went with Watts to see the defendant, and the defendant then told Watts, in his hearing, that he thought he should not take the goods according to the trade; also, that during the taking of the invoice, the defendant frequently came into the store, and said he should not take the goods. This evidence most undeniably tends to show a breach of the contract by the defendant; and, further, if the evidence were believed his liability was fixed at the time when he afterwards offered to accept the goods, and forbade the sale. The plaintiff had a right to regard the defendant's renunciation of the contract as final, and such as would release him from any further steps in its performance. I think the order for a nonsuit cannot be sustained.

3. It is clear that the invoice taken by the plaintiff, with the assistance of Hartwell and Kame, in the manner stated in the case, was not admissible to show the cost of the goods. If admissible at all, for any purpose, I think it must be as a memorandum made by the witness which he knew, at the time it was made, to be correct, and then only in case his memory was not refreshed by an examination of it, so that he could then state, from recollection, such matters in it as might be material. Kelsea v. Fletcher, contained 48 N.H. 282. I do not see why evidence, to show of what articles the stock was made up, as well as the price each article brought at the sale, on the basis of 62 1/2 per cent. of the prices set down in the paper, was not admissible; and that such was the view of the court, at the trial, seems manifest from the case. Whether the jury could be permitted to examine the paper for the purpose of ascertaining those facts, must depend upon whether the paper was admissible, as a memorandum, according to the well settled and well understood rules of practice in this state on that subject.

4. The plaintiff offered to show the value of the goods as evidence upon the question of their cost, which was refused by the court. It seems to me impossible to say that evidence of value has no tendency to show cost. In some sense the two terms are certainly convertible. In practical affairs, the value of a thing is taken to be what it will sell for in the market; hence, evidence of sales, that is, of cost, is every day admitted on the question of value, and I think there was error in excluding this evidence.

CUSHING, C.J., and SMITH, J., concurred.