Johnson v. Van Name

Barnard, P. J.

The proof clearly shows that the plaintiff sold to the defendant 120 barrels of oysters at $5 per barrel, amounting to $600 in value. The plaintiff testified that he shipped them, and directed his daughter to write down the shipments as they were made. The daughter supports the plaintiff in this statement, and the plaintiff further testifies that he compared the memorandum so made with the defendant’s books, and the accounts agreed. The defendant admits the price per barrel, but “did not receive as much as one-hundred and twenty barrels.” The amount of payments is also made the subject of dispute. The defendant gave evidence tending to show that the balance was about $50, and the plaintiff to the effect that there was over $200. The referee has found the balance at $205, and there is nothing iñ the evidence calling for a reversal of the finding. The evidence offered in respect to the appearance and order of the dates in the plaintiff’s account-book was properly rejected.' The book was before the referee as evidence, and unless there was something he could not see, such as careful erasures or other facts calling for expert testimony, he was the proper person to trust with the evidence. The judgment should therefore be affirmed, with costs. All concur.