Gillis v. Wilmington, Onslow & East Carolina Railroad

The single issue submitted, with the response thereto, was as follows: "Is the defendant indebted to the plaintiff as alleged; if so, in what sum? Answer: The defendant is indebted $275." Rule for new trial for errors alleged as to the admission of testimony and upon the following exceptions to the charge: The defendant excepted to his Honor's charge — (442) 1. For that his Honor assumed in said charge that there was sufficient evidence of the search of the plaintiff for the alleged letters containing the alleged contract, and their loss, to justify the admission of secondary evidence of contents, although the plaintiff said he himself had destroyed them, or might have destroyed them, and afterwards said "they may have been destroyed; I don't know." 2. For that his Honor charged that "if the (secondary) testimony satisfied the jury that Mr. Lamb was the chief engineer of the defendant and wrote to plaintiff and offered him $60 per month and board for one year for his work, and that plaintiff accepted this offer and went to work, the jury would be warranted in finding that there was a contract in writing as required by the statute," thus assuming that because he was chief engineer he was "authorized thereto," and did not advert to the fact, sworn to by Lamb, that he had no authority to make such a contract as is required by statute, which was the only evidence as to his authority. 3. For that his Honor charged the jury that "if the testimony satisfied them that Mr. Lamb was chief engineer of the defendant and wrote to plaintiff and offered him $60 per month and board for one year for his work, and that plaintiff accepted this offer and went to work, the jury would be warranted in finding that there was a contract in writing as required by the statute," and did not charge the jury as requested, that they must be clearly satisfied by more than a preponderance of testimony that said Lamb did write to the plaintiff making said offer, *Page 315 and that said offer was accepted by plaintiff and said correspondence was lost or destroyed — before they could find a verdict for plaintiff. Motion denied; judgment, from which defendant appealed. The other material facts are stated in the opinion. It is within the sound discretion of the court to determine what is sufficient evidence of the loss or destruction of an original paper to make testimony as to its contents competent, and this Court will assume, where nothing appears to the contrary, that the court below acted, in admitting secondary evidence to show the words or substance of the instrument, upon plenary proof that a sufficiently diligent but fruitless search was made, and that there was no testimony tending to show that it was fraudulently destroyed or withheld by the party proposing to prove its contents. Bondsv. Smith, 106 N.C. 564; 1 Wharton Ev., sec. 141; 1 Greenleaf Ev., sec. 558; 1 Taylor Ev., sec. 22. Mr. Greenleaf says: "The question whether the loss of the instrument is sufficiently proved to admit secondary evidence of its contents is to be determined by the court and not by the jury." Taylor says: "In like manner, if the question be whether a document has been duly executed or stamped, or whether it comes from the right of custody, whether sufficient search has been made for it to admit secondary evidence of its contents, etc., . . . in all these, and the like cases, the preliminary question of admissibility must, in the first instance, be exclusively decided by the judge, however complicated the circumstances may be, and though it may be necessary to weigh the conflicting testimony of numerous witnesses in order to arrive at a just conclusion." In Mauney v. Crowell, 84 N.C. 314, it was held that a general finding by the judge, without setting out the testimony, that no sufficient search had been made, would have been conclusive, thus recognizing the discretionary power of the court. But where the facts upon which the nisi prius judge acted are found, it is competent for this Court to review his ruling, and determine whether the testimony was sufficient in law to justify his conclusion. The degree of diligence that must be shown depends largely upon the (444) nature and circumstances of the case, and especially upon the character of the paper, as a useless document may be presumed to have been lost or destroyed, on proof of much less search and for a much shorter time than an important one. Best Ev., sec. 482; 1 Wharton Ev., sec. 140. As a rule, it is expected that deeds and records that are *Page 316 evidence of title will be more carefully kept than letters or papers which may or may not become material as testimony tending to establish one's rights. In Gathercole v. Miall, 15 M. W., 335, Alderson, B., says: "The question whether there has been a loss and whether there has been sufficient search, must depend very much on the nature of the instrument searched for. If we were speaking of an envelope in which a letter had been received, and a person said, `I have searched for it among my papers; I cannot find it,' surely that would be sufficient. So with respect to an old newspaper which had been at a public coffee-room; if the party who kept the public coffee-room had searched for it where he would naturally find it, that seems to me to be amply sufficient. If he had said, `I know it was taken away by A. B.,' then you ought to go to A. B. But," he concluded, "it would be very unreasonable to require you to go to every member of the club." Where a reasonable person might be satisfied, from the testimony offered, that an effort had been made in good faith to find and produce a letter, the decision of the trial judge to admit proof of its contents is not reviewable in the appellate court. Best Ev., p. 451. "The object in offering the proof is to establish a reasonable presumption of the loss of the instrument, and this is a preliminary inquiry addressed to the discretion of the judge." 1 Greenleaf Ev., sec. 558. The first exception is stated in the record as follows: "The plaintiff resumed and testified: `Richard Lamb said he (445) was chief engineer of defendant, and he was acting as such, and I got this letter from him. I got other letters from him before I went there. I have lost them. I have made search for them; have looked over my trunk. I had changed about so much till I could not find them. I reckon I lost them.'" Plaintiff was cross-examined upon this point, and testified: "I kept them in my trunk, and sometimes in my wife's trunk. We would change them about, and sometimes when we got too many letters we would destroy them. These letters may have been destroyed. I don't know." The defendant objected to plaintiff testifying as to the contents of the letters. The court, being of opinion that the witness had laid the foundation for the offer of secondary evidence by his testimony of the loss or destruction of the papers, permitted the plaintiff to testify as to their contents, and defendant excepted. We do not think, when it appears that the plaintiff usually kept his letters in his trunk and searched for them there without finding them, that the judge was in error in allowing him to testify as to the contents merely because he said that sometimes the letters were changed into his wife's trunk, and it did not appear that it had also been examined, nor because the witness said, in his examination in chief, "I reckon I lost *Page 317 them," and on his cross-examination, "These letters may have been destroyed; I don't know." We think that his Honor was warranted in drawing the inference that the letter had been lost or destroyed, and in either event its contents could be proven by parol. It is not essential that the testimony should have excluded the possibility that the letter was still in existence, as it was not necessary, in the case already cited, that every member of a club who had privilege of reading, or carrying off a newspaper should be offered to negative the possibility that he had it in his possession. In Mauney v. Crowell, supra, it was declared error to exclude a copy of an original contract to sell land (446) which had been shown to have been lost, because it did not appear that the registry of the county in which the law required it to be registered had been examined. In passing upon the evidence as to the preliminary question, the judge is not required to find that there is clear and satisfactory proof that a paper has been lost or destroyed before admitting testimony to show its contents. In Fisher v. Carroll, 41 N.C. 488, Judge Pearson, speaking of a case where the execution and contents of an alleged lost note were denied, said: "In such a case, although equity would not refuse to consider the mere affidavit as sufficient to account for not producing the originalnote, the strictest and clearest proof of the execution and contents would be required." See also Mobley v. Watts, 98 N.C. 284, and Clifton v. Fort,98 N.C. 178. It is settled by a line of authorities that, although the loss of a deed or paper relied on to prove a contract may have been sufficiently shown to justify the judge in admitting secondary evidence, such testimony must amount to clear and convincing proof that the deed or paper embodying the contract once existed, and that its contents were such as to sustain the material allegations of the complaint or answer in support of which they are offered. Loftin v. Loftin, 96 N.C. 94; Fisherv. Carroll, supra. We think, therefore, that there was error in refusing to give the third instruction prayed for, for which a new trial must be granted. While it is unnecessary to pass upon the question raised by the second exception, it may be well to add that it would not follow from the fact that Lamb was chief engineer that it was within the scope of his authority to make contracts with subordinate managers employed in grading the roadbed, and the laborers under them, in reference to wages. Wood R. L., page 446, and note 2. There was no testimony offered as to the nature or extent of his authority, or tending to show a ratification of his agreement with the plaintiff by the corporation. (447) Per Curiam. Error. Cited: McKesson v. Smart, ante, 19; Hendon v. R. R., 125 N.C. 127;Avery v. Stewart, 134 N.C. 291, 293.