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
- 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.
- Whether the itemized statement was admissible under the Massachusetts business-records statute, and whether failure to satisfy that statute barred admission on other grounds.
- 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.