(55 Misc. Rep. 634.)

#### CHAUTAUQUA LAKE MILLS v. HEWES et al.

(Chautauqua County Court.

August, 1907.)

1. Justices oe the Peace—Appeal-Presumptions.

In an action before a justice for the price of bran sold by plaintiff’s salesman, the admission of a memorandum of the transaction made by the salesman at the time, and which he testified is correct, in the absence of testimony that he had no recollection of the transaction, though incompetent, is cured, where on cross-examination he testifies that he does not remember anything in particular about the day, and the memorandum is not returned on appeal from a judgment for plaintiff, and therefore must be presumed to have been sufficient,

[Ed. Note.—For cases in point, see Cent. Dig. vol. 31, Justices of the Peace, § 712.]

2. Sales—Action eor Price—Question eor Jury.

In an action for the price of goods sold, positive testimony of plaintiff that defendants purchased the goods, as against that of both defendants, who denied receiving same, presents a question of fact for the jury.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 43, Sales, § 1064.]

Appeal from Justice Court.

Action by the Chautauqua Lake Mills against Frank Hewes and Cassius M. C. Hewes. From a judgment for plaintiff before a justice, defendants appeal. Affirmed.

C. F. Chapman, for appellants.

Van Dusen & Martin, for respondent.

OTTAWAY, J.

This action was brought by the plaintiff to recover the value of a quantity of bran claimed to have been sold and delivered to defendants by the salesman of the plaintiff. Upon the trial of the action the salesman of the plaintiff testified that the defendants came to the mill of plaintiff and got a ton of bran, which was charged to the defendants, that he made a memorandum of the transaction at the time, and that the memorandum was correct. The plaintiff’s attorneys then offered in evidence the memorandum. Objection was made by defendants’ attorney on the ground that it was incompetent. The objection was overruled and the memorandum received.

In the absence of testimony by the plaintiff’s witness that he had no recollection of the transaction, the reception of this evidence was error. The defendants’ objection that it was incompetent was sufficient, and were it not for subsequent events in the history of the trial its receipt would be sufficient grounds for the reversal of the judgment rendered herein. Upon cross-examination the witness testified that he did not remember anything particular about the day. He testified:

> “I go by the entry. I don’t remember that either one of the defendants were there that day. I don’t remember that they told me to charge feed to them when they came after It.”

It is- claimed by the plaintiff’s attorneys that this evidence made the memorandum competent-and cured the error committed by its reception. The memorandum is not returned for the information of this court. Under this evidence certain memoranda would have been *1027competent, and in the absence of any return as to the contents of the memorandum, under the rule laid down for the guidance of appellate courts in the review of justices’ judgments, the memorandum must be presumed to have been sufficient and competent. In view of the positive testimony of the witness for the plaintiff that the defendants came to the mill and purchased the bran, the court would not be authorized in reversing the judgment rendered upon the verdict of a jury, even though it appears that both defendants deny receiving the bran. The evidence raised a question of fact peculiarly within the province of a jury to determine. Judgment should be affirmed, with costs to the respondent.

Judgment affirmed, with costs to respondent.