This was an action for the price of ten tons of coal. The plaintiff testified that he took the order over the telephone from the defendant Fuller, and Fuller testified that he never gave it. In the course of his testimony the plaintiff referred to his day book which was not put in evidence. He explained that it was his practice when an order was given to write it out on a piece of paper which was kept until the order was filled by the delivery of the coal. Then, after the order stated on the slip had been filled, it and the method of filling it were entered on the day book and the slip was thrown away. The plaintiff used the day book to refresh his recollection both on direct and cross-examination, and without objection. The defendants were three trustees who owned the building in question. On cross-examination the plaintiff testified that he had sold coal to the defendants before on an order given by Freeman who was one of the trustees. He was sure that Freeman had ordered coal for the defendants although he knew that Freeman was also trustee of another real estate association in the same town. The three teamsters whose names appeared on the day book as having delivered the coal testified that they did deliver it and the defendant’s janitor testified that no coal was delivered at that time.
In the course of his charge to the jury the judge told them that “ there are on the one hand the books, a record made of a sale, and on the other part the memory of man.” To this part of the charge the defendants took an exception. Their argu*362ment in support of that exception is that the judge assumed that there was a record in evidence, the account book of the plaintiff. The plaintiff’s account book was not in evidence and the presiding judge did not say or assume that it was.
The judge also told the jury that if they thought Mr. Freeman should have been produced as a witness by the defendants they could give such weight as they saw fit to the fact that he had not been produced. There was no error in that.
The last exception is on the ground that the charge of the judge was argumentative, and in support of that contention the defendant has relied on Blackburn v. Boston Northern Street Railway, 201 Mass. 186, and Whitney v. Wellesley Boston Street Railway, 197 Mass. 495. We find nothing in the first of these cases which bears on this question and the charge is not a violation of R. L. c. 173, § 80, within the rule laid down in the second.
Bxceptions overruled.