Opinion
No. 6321.
Decided November 3, 1972.
1. In the absence of a record of testimony, the supreme court could not rule as a matter of law that a district court erred in finding that defendant had not satisfied its burden of proof or in ruling that evidence of retailers' handwritten notations on defendant manufacturer's invoices of the reasons certain goods had been rejected as unmerchantable was inadmissible as a business record under RSA 521:2 or under common-law principles.
Shute, Engel Frasier (Mr. David C. Engel orally) for Howard Laces, Inc.
Fisher, Parsons, Moran Temple and Robert E. Fisher (Mr. Fisher orally) for Colby Footwear, Inc.
In these cross-actions in assumpsit, Colby Footwear, Inc., hereinafter called the defendant, sought to prove that tongues supplied by plaintiff Laces for use in shoes manufactured by the defendant were unmerchantable (RSA 382-A:2-314) because defective, having been returned to defendant by retailers because rejected either by the retailers themselves or by their customers. Retailers' invoices which accompanied shoes returned to the defendant, when offered in evidence through the defendant's president, bore handwritten notations concerning the reason for rejection. The documents were excluded from evidence by the District Court (Daubenspeck, J.) subject to defendant's exception.
The court ruled in writing that the invoices were inadmissible under RSA 521:2, and inadmissible under common-law exceptions to the hearsay rule, and found and ruled that the defendant had not satisfied its burden of proof that the tongues were unmerchantable. Verdicts were returned for Howard Laces, Inc. in both actions.
No record of the testimony was made. In the circumstances it cannot be said as a matter of law that the court erred in finding that the burden of proof was not satisfied, or in ruling that the evidence was inadmissible under either the statute or common-law principles. RSA 521:2; see State v. Reenstierna, 101 N.H. 286, 288, 140 A.2d 572, 574-75 (1958).
Exceptions overruled.