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tiffs, defendant excepts, and petitions for Loss from lack of agreed elevator service: new trial. Exceptions overruled, and peti

Loss of time of men in receiving and

shipping freight, average $1 a day tion denied.

for 254 days, and other consequenArgued before STINESS, C. J., and TIL

tial losses

$ 254 00

Extra charge, Weaver, in moving us LINGHAST and ROGERS, JJ.

out, over what would have been re

quired with the agreed elevator Doran & Flanagan, for plaintiffs. Com. service

14 08 stock & Gardner, for defendant.

Glass broken by chain hoist.......... 6 00
Gage broken by chain hoist.

10 75

Extra men employed in moving on TILLINGHAST, J. This is an action of

account of lack of agreed elevator covenant, and is brought to recover damages

service

17 00

$ 301 83 which the plaintiffs claim to have suffered

Damages from failure to keep agreement by reason of certain breaches by the defend to prevent substances from coming through ant of the covenants contained in a lease,

ceiling:

Curtains spoiled, as per bill of July whereby he demised to the plaintiffs for a

$ 12 99 term of five years a part of the fourth floor Curtains and muslins spoiled, as per

bill of November 6....

54 43 of a building on Fountain street, in the city

Labor in cleaning goods not wholly of Providence. The material parts of the destroyed, and other damages from

100 00 lease in question are as follows: "The said

Labor in making up curtains to relessor does hereby demise unto said lessees place those spoiled

15 00 about twenty-four hundred square feet (2,

Cost of platform put up to protect
goods

54 25 400) of floor space, more or less, on the Cost of replacing sprinklers under

platform fourth floor in that certain building known

19 50

256 17 as the 'Greene Building,' in said Provi Damages from lack of power: dence, and contained within partitions now Wages plaintiffs were obliged to pay

through help idle April 10 to April erected and partitions to be erected by said 15, 1899

$ 24 00 lessor, with power to the extent of one and Loss from being idle....

74 00

Paid help while idle from lack of a half horse power, more or less, as may

power between September 4 and 9.. 5 17 be required to run the machines to be placed Paid to repair power motor..........

1 03

104 20 in said leased premises by said lessees, the

Damages from lack of agreed heat: use of the passenger elevator between the

April 8 to 21st. Loss of labor from hours of 7 a. m. and 6:30 p. m., and also the cold

$ 50 00

Loss of labor from cold during six use of the freight elevator in the adjoining

weeks next preceding January 1, building until the use of the same shall be 1900, and other damages consequent

thereon

150 00 cut off from said lessees, in which event the

200 00 said lessor hereby agrees with said lessees Damages in consequence of moving, render

necessary by defendant's failure to that he will furnish a means for the trans

keep terms of lease....

315 00 portation of freight with power from the

$1,177 20 street floor to said leased premises as convenient and as easy of access to said lessees At the trial of the case in the common as said freight elevator; and the said lessor pleas division the jury returned a verdict further agrees that he will keep the ceiling for the plaintiffs for the sum of $725 damof said leased premises in such condition ages, and the case is now before us on the that said lessees will not be damaged by rea defendant's petition for a new trial on the son of dust or other substance coming grounds (1) that the verdict is against the through or out of said ceiling; and said lessor evidence; (2) that the damages are excesfurther agrees to furnish steam heat suffi sive; and (3) that the court erred in refusing cient to keep said leased premises in a com to admit certain testimony which was offerfortable living condition." The plaintiffs ed by the defendant, and also in admitting commenced to occupy the leased premises on certain testimony offered by the plaintiffs. February 1, 1899, and remained there for The first ground of the petition is not re about one year. The principal business car

lied on. ried on by them was the manufacture of 1. As to the second ground, defendant's lace curtains; and for this purpose they counsel, in his brief, after carefully analyzing bought muslins, laces, and other delicate

the testimony from his standpoint, strenuousgoods, which, after being cut into proper ly argues that, from any fair construction shapes and sizes, were used in making the thereof, the damages sustained by the plainfinished product.

tiff's could not have exceeded the sum of The plaintiffs' claim is that the defendant $245; and hence he urges that the verdict renfailed to keep his covenants in several par dered could only have been arrived at through ticulars, viz.: (1) In not furnishing sufficient

prejudice and an entire disregard of the force power; (2) in not furnishing proper elevator and effect of the testimony. The plaintiffs' service; (3) in not furnishing satisfactory counsel, on the other hand, in his brief, after means for transportation of freight; (4) in carefully analyzing the testimony from his not keeping the ceiling in proper condition; standpoint, as strenuously argues that the and 5) in not furnishing sufficient heat to amount of damages awarded is fully suskeep the premises in comfortable living con tained by the evidence submitted. The case dition. The plaintiffs' bill of particulars for being one in which there is no certain damages thus sustained is as follows: measure of damages, the court cannot dis

ed

turb the verdict, unless the amount awarded where the decision of the tribunal whose is so large, in view of the evidence upon special province it is to decide such questions which it was based, as to show that the jury should be final, unless clearly and palpably must have been influenced by prejudice or wrong. Furthermore, the case is one in passion in rendering the same. Or, to state which the evidence was very conflicting, and the rule differently, the excess must be so hence peculiarly within the province of the great as to satisfy the court that the jury jury to decide. As a particular discussion were actuated by some improper motive or of the testimony submitted would serve no that they proceeded on some erroneous prin useful purpose, and as the jury were in a ciple of assessment. Hilliard on New Trials much better position than we are to carefully (2d Ed.) p. 567, § 10, and cases cited in note. weigh and consider the same, and, moreover, Still another way of stating the rule may be as there was evidence which, if believed by found in Elliott v. Ry. Co., 18 R. I. 707, 28 them, was sufficient to support their finding, Atl. 338, 31 Atl. 694, 23 L. R. A, 208, where we refrain from any further consideration Matteson, C. J., in delivering the opinion of of this branch of the case. this court, held that a new trial, based upon 2. The first exception relied on in support the ground of excessive damages, should be of the third ground for a new trial is based denied, unless the verdict “is so clearly ex upon the ruling of the trial court whereby cessive as to lead us to belive that it was not John M. Welch, one of the plaintiffs, was pera proper and honest exercise of the judg mitted to refresh his recollection, as to the ment of the jury." In Sedgwick on Damages, items of damages sustained by the failure of vol. 2, 7th Ed., p. 652, under the head of the defendant to perform the covenants in the "Excessive Damages,” the author says: “The lease, by referring to a memorandum which court holds itself at liberty to set aside ver he had previously made. It appeared that dicts and grant new trials in that class of this memorandum was made up by him from cases where there is no fixed legal rule of certain original memoranda made by him, or compensation, whenever the damages are so under his direct personal supervision, at the excessive as to create the belief that the times when the injuries complained of were jury have been misled either by passion, received. The witness did not then have prejudice, or ignorance. But this power is said original memoranda. It is a well-settled very sparingly used, and never except in a rule of evidence that a witness may refresh clear case.” This statement of the law is his memory by referring to a writing or other abundantly sustained by the numerous cases record or document as a memorandum. In collected in note (a), pp. 655–659. See, also, Abbott's Trial Ev. (2d Ed.) 395, the author Am. & Eng. Ency. of Law, vol. 8, 2d Ed., gives the following as one of the cases in 629-30. The real question in this class of which this may be done: “If the memorancases is, not whether the amount of the dam dum was made by himself or by another ages awarded by the jury is more or less person at his dictation, at the time of the than is, in the opinion of the court, proper, transaction concerning which he is questionbut whether it is shown that the jury have ed, or so soon afterwards that the judge conabused the discretion vested in them.

siders it likely that the transaction was at Upon a careful examination of the vol the time fresh in his memory, or if made by uminous testimony submitted to the jury any other person, and read by the witness in the case at bar, while we are of the within the same limits as to time, and if, opinion that the damages are large, we are when he read it, he knew it to be correct. If unable to say that they are so clearly and the witness testifies that he knew the writing palpably excessive as to warrant the court in to be correct at the time he made it or read interfering therewith under any of the rules it, the competency of testimony made by above stated. On the part of the plaintiffs, its aid is not impaired by the fact that he direct and positive testimony was offered in relies, not on his memory of the fact itself, support of every item mentioned in the bill but on his confidence in the accuracy of the of particulars; and, after eliminating the memorandum.” The same author further charges for moving out, as the jury must have illustrates the rule as follows:

“In cases done under the direction of the trial court, requiring many details of date, quantity, etc., together with certain other items, amounting it is common practice to allow a witness to in all to $377.83, there still remained charges consult, but not to read from, memoranda to the amount of $799.37 in support of which made by him of facts within his own knowl. testimony was offered. The jury cut down edge, to which he cannot speak in sufficient this amount to $725, and rendered a verdict detail without such aid, although the memfor this sum. And we fail to find that we oranda were made in preparation for trial.” could properly eliminate any of the items Mr. Greenleaf states the general rule as fol. upon which the jury were allowed to pass, lows (1 Greenl. on Ev. [15th Ed.] § 436): or that we should know where to draw the “Though a witness can testify only to such line in diminution of the verdict. It is one facts as are within his own knowledge and of those cases in which, in all human proba recollection, yet he is permitted to refresh bility, no two juries or no two courts would and assist his memory by the use of a writ. ever arrive at the same conclusion on the ten instrument, memorandum, or entry in a question of damages; and hence it is one book, and may be compelled to do so if the

writing is present in court. It does not seem the amounts thereof, as they had been noted to be necessary that the writing should have at or near the times of their occurrence; been made by the witness himself, nor that and under the law as above stated we fail it should be an original writing, provided, to see that the court erred in permitting the after inspecting it, he can speak to the facts witness to thus refresh his recollection. The from his own recollection. So, also, where practice in this state, so far as we are aware, the witness recollects that he saw the paper has always been to permit witnesses to rewhile the facts were fresh in his memory, fresh their memory in similar ways. State and remembers that he then knew that the v. Colwell, 3 R. I. 132. The exception in particulars therein mentioned were correctly question is therefore overruled. stated. And it is not necessary that the writ The second and only remaining exception ing thus used to refresh the memory should relied on by defendant is to the ruling of the itself be admissible in evidence."

trial court requiring the defendant to testify, The case of Erie Preserving Company v. in cross-examination, as to the sending to Miller, 52 Conn. 444, 52 Am. Rep. 607, is the plaintiffs of a bill for storage by him of strongly in point. There the witness, for the certain boxes, etc., during the tenancy aforepurpose of refreshing his recollection as to said. The defendant in his testimony had the number of crates received and the times denied all knowledge of injury to the plainwhen received, referred to certain memo tiffs from dirt, etc., falling from the ceiling, randa in his hands, which he testified were excepting four dollars damages to boxes true copies of the waybills in the office, all therefrom, which amount he had paid in the of which he had examined, and that he had spring; and he had also denied having seen no knowledge upon the subject other than a letter containing a statement of damages that obtained by inspection of the waybills. claimed to have been sustained by the plainThe defendant objected to the evidence be tiffs, which letter and statement the plaincause the original waybills were not pro tiffs had sent to defendant's agents who had duced and identified by the witness; but charge of said building and collected the the court overruled the objection and admit rents thereof. Said letter is as follows: ted the evidence. On appeal to the Supreme “Providence, R. I., July 31, 1899. Messrs. Court of Errors the ruling was sustained. G. L. & H. J. Gross, Providence, R. I.In its opinion the court said: “It is a well Gentlemen: Inclosed please find a bill for settled rule that a witness may refer to what we consider due us on account of inmemoranda, made by himself or by others, conveniences we have experienced under our for the purpose of refreshing his memory; lease with Mr. Greene. In the first place, but it must be for the sole purpose of re we have had an inestimable amount of infreshing his memory, not for the purpose of convenience because of the freight elevator gaining entirely original information from being shut down since the power was shut them. Whether the witness in the present off from the other building. Our lease reads case brought himself within that rule it is that we shall have freight elevator as easy not necessary for us to decide; for the ob of access as the one we started with. All jection taken was solely to his use as mem we have had, except promises, is the pasoranda of copies of the waybills, and not the senger elevator, which is inadequate, as we originals. This was a matter of no import have had to carry goods down and pack ance. A witness may refresh his memory as them, and also goods received have had to be to dates, before leaving home, by turning to taken out of case and carried up as elevator entries on his account book, and may make would carry them. The first week power copies of such entries to use upon the witness was shut off a motor was put in our place stand. The entries or memoranda are not and started; but it was not of sufficient powevidence in themselves. They do not go be er to run our machines, consequently it was fore the jury. Their office is solely to re a case of run and shut down to fix that mofresh the witness' recollection, and they are tor until another one was put in. We have his private property for that purpose.

If been annoyed by dust, water, etc., percolatthe waybills had been offered in evidence, ing through the floor, and Mr. Greene has the objection that copies, and not originals, paid one bill for damages on this score; but were introduced, would have been pertinent; that has nothing to do with this one. We but that objection had no pertinency to the have showed him where water and oil comes case as it stood." Cases to the same gen through on boxes and curtains. One item on eral effect are numerous. See Chapin v. gas came from our heater to run gas heater Lapham, 20 Pick. 467; Coffin v. Vincent, 12 he had in here when heat was turned off. Cush. 98; Com. v. Ford, 130 Mass. 64, 39 We took average between month previous Am. Rep. 426; State v. Collins, 15 S. C. 373, and month after. The passenger elevator 40 Am. Rep. 697; Folsom v. Log Driving has been shut down for a considerable length Co., 41 Wis. 602; State v. Lull, 37 Me. 246. of time and was afterwards run on the in

It is to be observed in the case at bar that termittent plan. We have had to walk up the memorandum was not offered in evidence on innumerable occasions, and customers and was not read to the jury, but was only have gone away rather than climb the stairs. used to aid the witness in recollecting as Respectfully yours, Welch & Company. [Dicto the items of damages claimed by him and tated.]"

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The bill sent with the letter was as follows: April 10th-15th, labor while motor was be

ing repaired and shrinkage on work.. $ 98 00 Diference on gas bill to April 21st, bill $2.75,

month previous 88c, month after $1.75, average $1.31-$2.75 less $1.31....

1 44 57 boxes spoiled by water..

$ 3 99 Muslin and lawn spoiled by oil and dirt 5 40 Curtains spoiled by oil and dirt........ 12 00

21 39 Extra cost of cases, cartage, etc., on account

of shipping inconveniences, estimate... 25 00 June 12, glass in door..

3 50 Damages on account of two elevators.

100 00 July-Extra time on getting goods in and out and pay for man getting up lumber.....

8 00 Goods and curtains soiled..

7 00 Labor on goods soiled.....

2 00

$261 33 The reply of the defendant's agents to this letter was as follows:

"Providence, August 7, 1899. Messrs. Welch & Company, No. 26 Fountain street, City-Gentlemen: Your favor of July 31st came duly to hand, and contents noted. The matter will be brought to the attention of Mr. Greene, and he will give it prompt attention. Yours, respectfully, G. L. & H. J. Gross, by James H. Hurley."

On September 19, 1899, the following letter was sent to the plaintiffs, namely:

"Providence, September 19th, 1899. Messrs. Welch & Company, Greene Building, Providence, R. 1.-Gentlemen: We take much pleasure in inclosing bill given to us for collection as agents of the Greene Building, in which you are a tenant. We will call on you at an early date in regard to this matter. Yours, respectfully, G. L. & H. J. Gross, by James H. Hurley. [Dictated.] Inclosure."

The bill which accompanied this letter was as follows:

Providence, R. I., September 1st, 1899. Messrs. Welch & Company, to Forrest Greene, Dr. To storage in basement to date........

$140 00 first floor...

60 00 third

15 00 fourth

30 00

in rooms which they did not hire. The witness further testified that he had more than one conversation with the defendant about this matter; that the bill of the plaintiffs was talked over quite a little, and that answer to the plaintiffs was not made until after the defendant had been called up on the telephone in regard to it; and that it was understood that they were to submit the bill for storage to offset the plaintiff's' claim, and that in pursuaạce thereof such a bill was sent to the plaintiffs. As we find no error in permitting the plaintiffs to offer the testimony in question, the exception must be overruled.

Exceptions overruled, petition for new trial denied, and ca se remanded for judgment on the verdict.

$215 00 Although the defendant denied all knowl. edge of the correspondence aforesaid, he admitted that he sent said bill for storage to the plaintiffs. The object of plaintiffs' counsel in inquiring about this bill was to lay the foundation for contradicting him later on by sbowing that he had seen and did know all about the letter of July 31st, and the claim for damages contained therein; that he had conferred with his agents regarding the same, and had then made up his bill to offset the claim made to his agents by the plaintiffs. The evidence was also offered for the purpose of discrediting or impeaching the defendant's testimony; and so long as the testimony objected to was followed up by the plaintiffs' counsel by calling Mr. James H. Hurley, who squarely contradicted the defendant in several important particulars, we think the ruling of the court here complained of was correct. Hurley testified that he had charge of the real estate department in the office of Gross; that the letter

(24 R. I. 527) MCDERMOTT V. ST. WILHELMINA

BENEV. AID SOC. (Supreme Court of Rhode Island. Dec. 13,

1902.) BENEFIT ASSOCIATION-ELECTION OF OFFI.

CER-MAJORITY OF VOTES CAST-NECESSITY -ESTOPPEL TO DENY ELECTION-MEMBERS NOT PRESENT - PHYSICIAN - ACTION FOR SERVICES - EVIDENCE ADMISSIBILITY ASSUMPSIT-EXECUTED CONTRACT_COMMON COUNTS-INSTRUCTIONS.

1. The constitution of a voluntary charitable association provided that a physician should be chosen at the regular election of the society, and that the election of officers should take place at the regular meetings in January and July. It also provided that, when there were more than two candidates for office, at every successive balloting the person receiving the least number of votes should be dropped, and the voting should continue in this manner until one candidate received a majority over all. It had been the custom to elect officers in June and December. At the last regular meeting in December a person was declared elected physician, though he received a plurality, and not a majority. of the ballots. No dissent was expressed to the announcement of his election. Held, that the failure to receive a majority did not invalidate his election, especially in view of the society's customary departure from its rules as to the time of elections.

2. The record of a voluntary charitable association showed that a certain person was elected its physician at a regular meeting of the society. It showed that at a special meeting held later the society recognized such election by directing the secretary to notify the incumbent of his discharge. Still later another person was chosen as physician, "for the balance of the present term. Held, that the society was estopped to deny the regularity of the election of the first incumbent.

3. The fact that an oflicer was declared elected at a meeting of a voluntary association, though he received a plurality, instead of a majority, of the votes, as required by the constitution, will not prevent his election binding absent members; it appearing that the society

had regarded itself as somewhat at liberty to depart from its rules governing elections.

4. In an action by a .physician against a yoluntary association to recover compensation as its medical officer, plaintiff introduced a newspaper notice that he had resumed practice after an illness.

At the time of plaintiff's election as medical officer, it was known that he had been ill, and doubts were entertained by some members as to whether he would be able to resume his duties. The newspaper notice was referred to by plaintiff when accepting his election, and was before the society later when its action was rescinded. Held, that the notice was admissible to show that plaintiff was physically competent to discharge his official duties when elected.

5. Even if irrelevant, the notice was of such small account that it could not have prejudiced the society's rights, and afforded no ground for a new trial.

6. When a contract has been fully executed, and nothing remains to be done but the pay. ment of the price agreed on, plaintiff may declare on the common counts in indebitatus assumpsit.

7. In an action by a physician against a voluntary association to recover compensation as its medical officer, the main issue was whether plaintiff had been properly elected, and had accepted before the election was rescinded. It appeared that he had previously served the society at a certain rate per capita of member. ship. Held, that an instruction that when one enters the service of another for a definite period, and continues in the employment afterwards without any new contract, the presumption is that the employment is continued on the terms of the original contract, was uot so foreign to the issues as to be error.

8. In an action by a physician for compensation as medical officer of a voluntary association, the court instructed that, if plaintiff was entitled to recover at all, he should have all that he claimed, and a verdict for that amount was returned. Held, that a further instruction that a request from the association to render services for it implied an agreement to pay him what his services were worth was harmless error.

Assumpsit by Bernard F. McDermott against the St. Wilhelmina Benevolent Aid Society. On petition of defendant for a new trial. Denied.

· Argued before STINESS, C. J., and TILLINGHAST and ROGERS, JJ.

William M. P. Bowen, for plaintiff. Frank. lin P. Owen, for defendant.

for the full amount of said claim, with interest. The case is now before us upon the defendants' petition for a new trial on the grounds (1) that the verdict was against the evidence, and (2) that certain rulings of the common pleas division made during the trial were erroneous.

1. The plaintiff is a physician, and the de. fendant society is a voluntary association organized for the purposes of charity. The plaintiff was first employed by the defendant society in July, 1899, and rendered services during the period for which he was then employed, except that he was ill and absent for a while during the autumn and early winter of 1900, prior to the period now sued for, and his place was taken by a substitute, Dr. Gray. The rate originally agreed upon in 1899 was the same as that now sued for, namely, ten cents a month for each member of the society in financial standing; and no different contract was entered into between the parties at the time when the plaintiff was last elected.

Article 9 of the constitution of the defendant society, in force during the period in question, provides as follows:

“Section 1. There shall be a physician attached to this society, whom the members can consult at any time.

"Sec. 2. The physician shall be chosen by the society at the regular elections of the society, and shall serve for six months.

"Sec. 3. The physician shall receive such sum per month, per annum, per member, as may be agreed between him and the society, from time to time, to be paid at the expiration of each quarter.

“Sec. 4. The financial secretary shall furnish the physician with a list of all members in good standing and entitled to benefits, at the beginning of each year; also notify him of all who are in arrears and all that have been reinstated.

“Sec. 5. Every member applying for medical advice must present her card of membership if the doctor requests her so to do."

Article 3, § 4, of the constitution provides that “the election of officers shall take place at the regular meetings in January and July,” and article 1 of the by-laws of the society provides that its meetings shall be held on the second and fourth Fridays of each month, at 8 o'clock. It had been the custom, however, for some time before the election in question, to elect officers in June and December.

At the last regular meeting in December, 1900 (held on December 28th), the plaintiff was declared elected the physician of the SO ty, and the president directed the corresponding secretary to notify him of his election. Although the plaintiff did not receive a majority of all the ballots, he was declared elected the physician of the society; and this was acquiesced in by all the members thereof who were present at this regular meeting. The records of the meet

TILLINGHAST, J. This is assumpsit to recover the sum of $90, which the plaintiff claims to be due and owing to him from the defendants for professional services, under a contract entered into between him and the defendants on the 28th day of December, 1900. The action is brought against the individual members of said society, associated together under the name aforesaid. At the trial of the case in the district court of the Sixth judicial district, a decision was rendered in favor of the plaintiff for the amount claimed, whereupon the case was taken to the common pleas division for a jury trial upon the de. fendants' claim therefor, and upon trial in that court the plaintiff recovered a verdict

6. See Assumpsit, Action of, vol. 5, Cent. Dig. $ 17.

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