Montgomery & Mullen Lumber Co. v. Ocean Park Scenic Railway Co.

CONREY, P. J.

The defendant’s appeal is from an order denying its motion for a new trial. The action was brought to recover an alleged balance due to the plaintiff for lumber sold and delivered to the defendant. It was found by the court that the plaintiff sold and delivered to defendant lumber of the value of $2,875.15, of which sum two thousand dollars was paid by the defendant. Appellant claims that the evidence is insufficient to support the finding that any lumber was delivered exceeding in value the amount paid. The controversy between the parties relates to the quantity of lumber delivered, and not to the prices charged with respect to the various items.

C. W. Pinkerton, the manager of plaintiff’s business, testified to the sale of lumber by plaintiff to the defendant. Certain books were produced in court which he said contained the original charges. Prom those books a bill of particulars was compiled, which, prior to the trial, was served upon the defendant and which was used in connection with Pinkerton’s testimony. He said: “Our office system is such that when we send an order to the yards to be loaded for delivery, we have working in the yards men that we call salesmen, they take

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that order, they load in on the wagon, and after they get the load loaded on the wagon, they go to the office and make the charge on these books as the load is loaded, those entries are made up in triplicate, the salesman in making that charge simply itemizes out so many pieces of each kind, the triplicate copy is given to the driver and delivered on the job with the load; then in the course of business the office force makes the extension in dollars and cents. Although these books appear to have been written with a carbon they were made at the time the original ticket was made. The original is sent at the end of the month to the customer. These books were kept under my direction and I know to my own knowledge that these are correct charges.” Upon that statement, the books as a whole and as one exhibit were introduced in evidence. They are not contained in the record on appeal. The bill of particulars was by stipulation introduced into the bill of exceptions in lieu of setting out a copy of the books, and Pinkerton testified that the original bill of particulars corresponds with the tiharges as contained in the books, “so far as feet, etc., are concerned.”