Such a writing or record is enough to take the second count to the jury. Lyman B. Brooks Co. v. Wilson, 218 Mass. 205, 208-209. Sellew v. Tuttle's Millinery Inc. 319 Mass. 368, 371.
G.L. (Ter. Ed.) c. 233, ยง 78. Lyman B. Brooks Co. v. Wilson, 218 Mass. 205, 208-209. Sellew v. Tuttle's Millinery Inc. 319 Mass. 368, 371. "Such records form some evidence that the party charged is the one liable."
Ed.) c. 233, ยง 78, that the entries were made in good faith, in the regular course of business and before the action was begun. We think there was no error. Riley v. Boehm, 167 Mass. 183. Lyman B. Brooks Co. v. Wilson, 218 Mass. 205. Evidence offered by the defendant, that he never bought any "merchandise, goods or labor or anything else from the plaintiff" and that the agreement "by which . . . [he] was to pay $250 for every trip" was different from the contract declared upon, was properly excluded.
Such records form some evidence that the party charged is the one liable. Lyman B. Brooks Co. v. Wilson, 218 Mass. 205, 209. Taylor v. Harrington, 243 Mass. 210, 213.
Compare Dittmar v. Norman, 118 Mass. 319, 324. A record of such a consignment, therefore, like a charge on the books of a purported seller ( Lyman B. Brooks Co. v. Wilson, 218 Mass. 205, 209, Standard Oil Co. of New York v. Malaguti, 269 Mass. 126, 129) is some evidence of a sale to the person named. 2.
Ordinarily the question whether a contract has been made is one of fact. If the evidence consists only of writings, or is uncontradicted, the question is for the court; otherwise it is for the jury. Lyman B. Brooks Co. v. Wilson, 218 Mass. 205. Waldstein v. Dooskin, 220 Mass. 232. Gould v. Converse, 246 Mass. 185. Hammond Coal Co. Inc. v. Lewis, 248 Mass. 499. There was no single writing signed by both parties and intended by them to embody all the terms of their contract.
It also could be found, even on the auditor's report, that, after receiving the orders, and before any shipment, the seller was informed by the correspondence that all stock was to be shipped when dry. The orders, the statements to Amidon, and the correspondence, were all to be considered. Lyman B. Brooks Co. v. Wilson, 218 Mass. 205, 208. The evidence introduced by the buyer, to which the seller excepted, that Amidon was informed of the purpose for which the boards were bought, and that the lumber must be dry, was therefore admissible.
The evidence showing the wages he was to receive and the amount of the bonus based on his earnings for the year was admissible. North Packing Provision Co. v. Lynch, 196 Mass. 204. Lyman B. Brooks Co. v. Wilson, 218 Mass. 205. Glackin v. Bennett, 226 Mass. 316, 319. If the jury believed this evidence, and the question was one of fact, they could find that a legal contract was made to pay this bonus; that it was not a mere gratuity but a part of the contract of service. See Scott v. J. F. Duthie Co. 28 A. L. R. 328.
We think the books were admissible for the purpose offered under the terms of St. 1913, c. 288 (see now G. L. c. 233, ยง 78), if it be assumed as it must be that the court found that the entries were made in good faith, in the regular course of business, and before the beginning of the civil proceedings in question. American Locomotive Co. v. Hamblen, 217 Mass. 513. Lyman B. Brooks Co. v. Wilson, 218 Mass. 205. Dickinson v. Boston, 188 Mass. 595. Exceptions overruled.
When it is apparent that the writing contains only a part of the agreement and does not purport to set forth all its terms, or when it is a reasonable inference that it was not intended to be a full and final statement of the entire transaction, the existence of a separate agreement, not inconsistent with its terms and relating to some subject on which the written instrument is silent, may be shown by parol. North Packing Provision Co. v. Lynch, 196 Mass. 204, 206. Green v. Danahy, 223 Mass. 1, 4. See also West End Manuf. Co. v. P.R. Warren Co. 198 Mass. 320; Davis v. Cress, 214 Mass. 379; Lyman B. Brooks Co. v. Wilson, 218 Mass. 205. But where a writing shows on its face that it includes the whole agreement of the parties and comprises all that is necessary to constitute a contract, it is presumed that they have placed the terms of their bargain in this form to prevent misunderstanding and dispute, intending it to be a complete and final statement of the whole transaction. And all their stipulations relating to its subject matter are to be found within the written instrument.