## Facts

- A contractor sued a homeowner in an action of contract to recover unpaid charges for labor and materials used to repair the homeowner’s house.
- At trial, the contractor testified about the work performed and stated that he mailed the homeowner an itemized statement of charges.
- The contractor used a carbon copy of the itemized statement to aid his testimony; the original had been sent to, and was in the possession of, the homeowner.
- The itemized statement contained more than 100 entries.
- The contractor offered the carbon copy as an exhibit; the homeowner objected, arguing the document was self-serving and that the original controlled.
- The homeowner admitted he had the original statement but refused to produce it when requested.
- The trial judge admitted the carbon copy, and the jury returned a verdict for the contractor.
- The homeowner sought appellate review by exceptions, challenging the admission of the carbon copy.

## Issues

1. Whether a carbon copy of an itemized statement could be admitted as “past recollection recorded” when it was treated as a record of the witness’s prior knowledge rather than merely a memory aid.
2. Whether the itemized statement was admissible under the Massachusetts business-records statute, and whether failure to satisfy that statute barred admission on other grounds.
3. Whether the carbon copy was admissible as secondary evidence of the original’s contents when the opposing party possessed the original and refused to produce it.

## Decision

- The Supreme Judicial Court overruled the homeowner’s exceptions and left the verdict for the contractor undisturbed.
- The Court held the carbon copy was admissible under the common-law doctrine of recorded recollection, and its admission as an exhibit was within the trial judge’s discretion.
- The Court declined to sustain admission under the business-records statute because the required foundational findings were not made.
- The Court further held the carbon copy was admissible as secondary evidence because the homeowner had the original and refused to produce it.

## Legal Principles

- A writing may be used either to refresh present recollection or, when the witness lacks present memory, as a recorded recollection evidencing past knowledge.
- When a memorandum is authenticated as an accurate record of the witness’s earlier knowledge, it may be incorporated into the witness’s testimony and, in the trial judge’s discretion, received as an exhibit.
- Admission cannot be justified under the business-records statute without the judge making the statute’s foundational findings; lack of that foundation does not bar admission under another applicable evidentiary doctrine.
- Under best-evidence principles, when the opponent controls the original document and fails or refuses to produce it after request, other evidence of its contents, including a copy, may be admitted as secondary evidence.

## Conclusion

The court upheld a verdict for the contractor, ruling that a carbon copy of an itemized bill was properly admitted as recorded recollection and, independently, as secondary evidence because the homeowner possessed the original and refused to produce it.


Fisher v. Swartz, 333 Mass. 265 (1955)