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TILLINGHAST, J. This is an action of covenant, and is brought to recover damages which the plaintiffs claim to have suffered by reason of certain breaches by the defendant of the covenants contained in a lease, whereby he demised to the plaintiffs for a term of five years a part of the fourth floor of a building on Fountain street, in the city of Providence. The material parts of the lease in question are as follows: "The said lessor does hereby demise unto said lessees about twenty-four hundred square feet (2,400) of floor space, more or less, on the fourth floor in that certain building known as the 'Greene Building,' in said Providence, and contained within partitions now erected and partitions to be erected by said lessor, with power to the extent of one and a half horse power, more or less, as may be required to run the machines to be placed in said leased premises by said lessees, the use of the passenger elevator between the hours of 7 a. m. and 6:30 p. m., and also the use of the freight elevator in the adjoining building until the use of the same shall be cut off from said lessees, in which event the said lessor hereby agrees with said lessees that he will furnish a means for the transportation of freight with power from the street floor to said leased premises as convenient and as easy of access to said lessees as said freight elevator; and the said lessor further agrees that he will keep the ceiling of said leased premises in such condition that said lessees will not be damaged by reason of dust or other substance coming through or out of said ceiling; and said lessor further agrees to furnish steam heat sufficient to keep said leased premises in a comfortable living condition." The plaintiffs commenced to occupy the leased premises on February 1, 1899, and remained there for about one year. The principal business carried on by them was the manufacture of lace curtains; and for this purpose they bought muslins, laces, and other delicate goods, which, after being cut into proper shapes and sizes, were used in making the finished product.

The plaintiffs' claim is that the defendant failed to keep his covenants in several particulars, viz.: (1) In not furnishing sufficient power; (2) in not furnishing proper elevator service; (3) in not furnishing satisfactory means for transportation of freight; (4) in not keeping the ceiling in proper condition; and (5) in not furnishing sufficient heat to keep the premises in comfortable living condition. The plaintiffs' bill of particulars for damages thus sustained is as follows:

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$ 12.99

54 43

100 00

$ 301 83

15 00 54 25

19 50

256 17

$ 24 00 74.00

5 17 1 03

$ 50 00

104 20

150 00

200 00

Damages in consequence of moving, rendered necessary by defendant's failure to keep terms of lease.......

315 00 $1,177 20

At the trial of the case in the common pleas division the jury returned a verdict for the plaintiffs for the sum of $725 damages, and the case is now before us on the defendant's petition for a new trial on the grounds (1) that the verdict is against the evidence; (2) that the damages are excessive; and (3) that the court erred in refusing to admit certain testimony which was offered by the defendant, and also in admitting certain testimony offered by the plaintiffs.

The first ground of the petition is not relied on.

1. As to the second ground, defendant's counsel, in his brief, after carefully analyzing the testimony from his standpoint, strenuously argues that, from any fair construction thereof, the damages sustained by the plaintiff's could not have exceeded the sum of $245; and hence he urges that the verdict rendered could only have been arrived at through prejudice and an entire disregard of the force and effect of the testimony. The plaintiffs' counsel, on the other hand, in his brief, after carefully analyzing the testimony from his standpoint, as strenuously argues that the amount of damages awarded is fully sus tained by the evidence submitted. The case being one in which there is no certain measure of damages, the court cannot dis

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turb the verdict, unless the amount awarded is so large, in view of the evidence upon which it was based, as to show that the jury must have been influenced by prejudice or passion in rendering the same. the rule differently, the excess must be so great as to satisfy the court that the jury were actuated by some improper motive or that they proceeded on some erroneous principle of assessment. Hilliard on New Trials (2d Ed.) p. 567, § 10, and cases cited in note. Still another way of stating the rule may be found in Elliott v. Ry. Co., 18 R. I. 707, 28 Atl. 338, 31 Atl. 694, 23 L. R. A. 208, where Matteson, C. J., in delivering the opinion of this court, held that a new trial, based upon the ground of excessive damages, should be denied, unless the verdict "is so clearly excessive as to lead us to belive that it was not a proper and honest exercise of the judgment of the jury." In Sedgwick on Damages, vol. 2, 7th Ed., p. 652, under the head of "Excessive Damages," the author says: "The court holds itself at liberty to set aside verdicts and grant new trials in that class of cases where there is no fixed legal rule of compensation, whenever the damages are so excessive as to create the belief that the jury have been misled either by passion, prejudice, or ignorance. But this power is very sparingly used, and never except in a clear case." This statement of the law is abundantly sustained by the numerous cases collected in note (a), pp. 655-659. See, also, Am. & Eng. Ency. of Law, vol. 8, 2d Ed., 629-30. The real question in this class of cases is, not whether the amount of the damages awarded by the jury is more or less than is, in the opinion of the court, proper, but whether it is shown that the jury have abused the discretion vested in them.

Upon a careful examination of the voluminous testimony submitted to the jury in the case at bar, while we are of the opinion that the damages are large, we are unable to say that they are so clearly and palpably excessive as to warrant the court in interfering therewith under any of the rules above stated. On the part of the plaintiffs, direct and positive testimony was offered in support of every item mentioned in the bill of particulars; and, after eliminating the charges for moving out, as the jury must have done under the direction of the trial court, together with certain other items, amounting in all to $377.83, there still remained charges to the amount of $799.37 in support of which testimony was offered. The jury cut down this amount to $725, and rendered a verdict for this sum. And we fail to find that we could properly eliminate any of the items upon which the jury were allowed to pass, or that we should know where to draw the line in diminution of the verdict. It is one of those cases in which, in all human probability, no two juries or no two courts would ever arrive at the same conclusion on the question of damages; and hence it is one

where the decision of the tribunal whose special province it is to decide such questions should be final, unless clearly and palpably wrong. Furthermore, the case is one in which the evidence was very conflicting, and hence peculiarly within the province of the jury to decide. As a particular discussion of the testimony submitted would serve no useful purpose, and as the jury were in a much better position than we are to carefully weigh and consider the same, and, moreover, as there was evidence which, if believed by them, was sufficient to support their finding, we refrain from any further consideration of this branch of the case.

2. The first exception relied on in support of the third ground for a new trial is based upon the ruling of the trial court whereby John M. Welch, one of the plaintiffs, was permitted to refresh his recollection, as to the items of damages sustained by the failure of the defendant to perform the covenants in the lease, by referring to a memorandum which he had previously made. It appeared that this memorandum was made up by him from certain original memoranda made by him, or under his direct personal supervision, at the times when the injuries complained of were received. The witness did not then have said original memoranda. It is a well-settled rule of evidence that a witness may refresh his memory by referring to a writing or other record or document as a memorandum. In Abbott's Trial Ev. (2d Ed.) 395, the author gives the following as one of the cases in which this may be done: "If the memorandum was made by himself or by another person at his dictation, at the time of the transaction concerning which he is questioned, or so soon afterwards that the judge considers it likely that the transaction was at the time fresh in his memory, or if made by any other person, and read by the witness within the same limits as to time, and if, when he read it, he knew it to be correct. If the witness testifies that he knew the writing to be correct at the time he made it or read it, the competency of testimony made by its aid is not impaired by the fact that he relies, not on his memory of the fact itself, but on his confidence in the accuracy of the memorandum." The same author further illustrates the rule as follows: "In cases requiring many details of date, quantity, etc., it is common practice to allow a witness to consult, but not to read from, memoranda made by him of facts within his own knowledge, to which he cannot speak in sufficient detail without such aid, although the memoranda were made in preparation for trial." Mr. Greenleaf states the general rule as follows (1 Greenl. on Ev. [15th Ed.] § 436): "Though a witness can testify only to such facts as are within his own knowledge and recollection, yet he is permitted to refresh and assist his memory by the use of a written instrument, memorandum, or entry in a book, and may be compelled to do so if the

writing is present in court. It does not seem to be necessary that the writing should have been made by the witness himself, nor that it should be an original writing, provided, after inspecting it, he can speak to the facts from his own recollection. So, also, where the witness recollects that he saw the paper while the facts were fresh in his memory, and remembers that he then knew that the particulars therein mentioned were correctly stated. And it is not necessary that the writ ing thus used to refresh the memory should itself be admissible in evidence."

The case of Erie Preserving Company v. Miller, 52 Conn. 444, 52 Am. Rep. 607, is strongly in point. There the witness, for the purpose of refreshing his recollection as to the number of crates received and the times when received, referred to certain memoranda in his hands, which he testified were true copies of the waybills in the office, all of which he had examined, and that he had no knowledge upon the subject other than that obtained by inspection of the waybills. The defendant objected to the evidence because the original waybills were not produced and identified by the witness; but the court overruled the objection and admitted the evidence. On appeal to the Supreme Court of Errors the ruling was sustained. In its opinion the court said: "It is a wellsettled rule that a witness may refer to memoranda, made by himself or by others, for the purpose of refreshing his memory; but it must be for the sole purpose of refreshing his memory, not for the purpose of gaining entirely original information from them. Whether the witness in the present case brought himself within that rule it is not necessary for us to decide; for the objection taken was solely to his use as memoranda of copies of the waybills, and not the originals. This was a matter of no importance. A witness may refresh his memory as to dates, before leaving home, by turning to entries on his account book, and may make copies of such entries to use upon the witness stand. The entries or memoranda are not evidence in themselves. They do not go before the jury. Their office is solely to refresh the witness' recollection, and they are his private property for that purpose. If the waybills had been offered in evidence, the objection that copies, and not originals, were introduced, would have been pertinent; but that objection had no pertinency to the case as it stood." Cases to the same general effect are numerous. See Chapin v. Lapham, 20 Pick. 467; Coffin v. Vincent, 12 Cush. 98; Com. v. Ford, 130 Mass. 64, 39 Am. Rep. 426; State v. Collins, 15 S. C. 373, 40 Am. Rep. 697; Folsom v. Log Driving Co., 41 Wis. 602; State v. Lull, 37 Me. 246. It is to be observed in the case at bar that the memorandum was not offered in evidence and was not read to the jury, but was only used to aid the witness in recollecting as to the items of damages claimed by him and

the amounts thereof, as they had been noted at or near the times of their occurrence; and under the law as above stated we fail to see that the court erred in permitting the witness to thus refresh his recollection. The practice in this state, so far as we are aware, has always been to permit witnesses to refresh their memory in similar ways. State v. Colwell, 3 R. I. 132. The exception in question is therefore overruled.

The second and only remaining exception relied on by defendant is to the ruling of the trial court requiring the defendant to testify, in cross-examination, as to the sending to the plaintiffs of a bill for storage by him of certain boxes, etc., during the tenancy aforesaid. The defendant in his testimony had denied all knowledge of injury to the plaintiffs from dirt, etc., falling from the ceiling, excepting four dollars damages to boxes therefrom, which amount he had paid in the spring; and he had also denied having seen a letter containing a statement of damages claimed to have been sustained by the plaintiffs, which letter and statement the plaintiffs had sent to defendant's agents who had charge of said building and collected the rents thereof. Said letter is as follows:

"Providence, R. I., July 31, 1899. Messrs. G. L. & H. J. Gross, Providence, R. I.— Gentlemen: Inclosed please find a bill for what we consider due us on account of inconveniences we have experienced under our lease with Mr. Greene. In the first place, we have had an inestimable amount of inconvenience because of the freight elevator being shut down since the power was shut off from the other building. Our lease reads that we shall have freight elevator as easy of access as the one we started with. All we have had, except promises, is the passenger elevator, which is inadequate, as we have had to carry goods down and pack them, and also goods received have had to be taken out of case and carried up as elevator would carry them. The first week power was shut off a motor was put in our place and started; but it was not of sufficient power to run our machines, consequently it was a case of run and shut down to fix that motor until another one was put in. We have been annoyed by dust, water, etc., percolating through the floor, and Mr. Greene has paid one bill for damages on this score; but that has nothing to do with this one. have showed him where water and oil comes through on boxes and curtains. One item on gas came from our heater to run gas heater he had in here when heat was turned off. We took average between month previous and month after. The passenger elevator has been shut down for a considerable length of time and was afterwards run on the intermittent plan. We have had to walk up on innumerable occasions, and customers have gone away rather than climb the stairs. Respectfully yours, Welch & Company. [Dictated.]"

We

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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:

1899.

"Providence, September 19th. Messrs. Welch & Company, Greene Building, Providence, R. I.-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 60 00 15 00 30 00

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$245 00

Although the defendant denied all knowledge 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 showing 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

of July 31st, with bill inclosed, was received by them, and that on receiving it they referred it to Mr. Greene; that Mr. Greene was in their office frequently, and that, as soon as he called, the letter was handed to him; and that in reply thereto he stated that he would have a bill in set-off for storage of boxes and cases, or something of that sort, that the concern stored in the hall or 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 plaintiffs' claim, and that in pursuance thereof such a bill was sent to the plaintiffs. As we find no error in permitting the plaintiff's to offer the testimony in question, the exception must be overruled.

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

(24 R. I. 527)

MCDERMOTT v. ST. WILHELMINA

BENEV, AID SOC.

(Supreme Court of Rhode Island. Dec. 13, 1902.)

BENEFIT ASSOCIATION-ELECTION OF OFFICER-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 officer 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 voluntary 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 elec tion 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 payment of the price agreed on, plaintiff may declare on the common counts in indebitatus assumpsit.

It

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. appeared that he had previously served the society at a certain rate per capita of membership. 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 not 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. Franklin P. Owen, for defendant.

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 defendants' claim therefor, and upon trial in that court the plaintiff recovered a verdict

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

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 defendant 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 society, 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

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