Headley v. Reed

Appeal from the Fourth Judicial District.

In this case Headley and Cozzens brought suit to recover for goods sold and delivered to the appellant, and for money loaned him.

The appellant denies the sale and delivery, as charged; and as to the money avers that it was in payment of an account due him.

The parties waived a trial by jury, and the Court found for the plaintiff, $575.25; upon which judgment was entered the 16th day of June, 1851. On the 19th June the judgment was opened, and the defendant allowed to come in and defend, &c.; and afterwards, on the 11th July, 1851, the case was referred to James D. Galbraith, who reported that there was due from the defendant to the plaintiff $532.40, including interest to the date, 20th July, 1851; upon which report judgment was entered on the 28th July.

The plaintiff, for proof, produced before the referee his books, which show a charge against the defendant for a case of boots, dated ¡November, 1850; and produced a witness, who testified that he was in plaintiff’s store in October, 1850, and heard Headley ask defendant when he was going to take away a case of boots; who answered, that he would take them away in a day or two. He heard like conversation between them afterwards; and plaintiff told defendant that in case of fire they would be at the defendant’s risk. Witness’s name is on plaintiff’s books charged with goods bought by him of them: (defendant objects to the questions and to the answers, and all proofs that witness may give touching plaintiff’s books:) that the charges against him were correct, so far as he had dealings with them: (objected to by defendant:) that the charge of $12.50 a pair for boots in ¡November, 1850, was a fair price. Plaintiffs here offered their books, in which is a charge to defendant of 30 pairs boots at $12.50—$450 ; also 2 bottles-brandy, 1st January, 1851, $2; and box sardines, $1.25—$453.25. A check on Wills & Bradley for $100, in favour of J. L. Reed or bearer, was also offered. Witness proved defendant’s signature to the check. Witness did not know in whose hand-writing the entries were made in plaintiff’s books. The foregoing testimony accompanies the report of the referees, with the objections as stated.

Judgment was entered on the report July 28, and afterwards, on the 28th July, the defendant filed the following statement:

“ On the trial of this cause before the referee, the defendant objected to the evidence of the plaintiff as stated in the referee’s statement thereof, (as above,) but the referee admitted the said testimony—and this being all the evidence introduced by the plaintiff. The defendant moved for a report and judgment in his favour; but the referee reported upon the evidence aforesaid in favour of the plaintiff, to which defendant excepts.