American National Bank v. Brickhouse

Bkoguen, J. Exceptions eight and twelve present this question: Can a witness testify as to the contents of a letter received by him without proof of the genuineness of the original letter and without evidence as to the loss thereof ? It is a general rule of evidence that the best evidence which the nature of the case admits of must be produced. When the nonproduction of the best evidence is properly accounted for, then the next best evidence in the party’s power is required. But before secondary evidence of the contents of a letter can be given in evidence, the letter itself must be properly identified by proof of the signature, and if the letter has been lost, the loss must be properly shown before evidence of the contents thereof is admissible. Dumas v. Powell, 14 N. C., 104; Smith v. R. R., 68 N. C., 107; Gillis v. R. R., 108 N. C., 441; Avery v. Stewart, 134 N. C., 287; Arndt v. Ins. Co., 176 N. C., 652; Mahoney v. Osborne, 189 N. C., 445. *233 In the case now under consideration, the record shows the following facts: The defendant Oohoon testified that the agent of the Phos-Pho Germ Manufacturing Corporation “had a letter from Mr. Sands, signed by Mr. Sands. (Question by the court) : All you know is that it purported to be from Mr. Sands? Answer: Yes, sir; and written on a letterhead, written by Mr. Sands, president of the bank. (By the court) : Did his name appear on the printed stationery? Answer: Yes, sir. With a great many of the other bank associates ? Answer: He told me that some other concern which did a big trunk and box business, who were stockholders in this business, and had a letter from them, saying what a success it was, and what a wonderful investment it was, and what a wonderful product they had, surpassing all other fertilizers in making crop yields.” In the charge to the jury the court referred to the letter as follows: “And that he showed him, or offered evidence to show, that he is also an officer in the Phos-Pho Germ Manufacturing Corporation.” The witness did not testify that he knew the handwriting of Mr. Sands, and there was no evidence whatever to identify the letter. Without such proof the letter was inadmissible. Even if the letter had been genuine and properly identified and proven, the best evidence of its contents would have been the .letter itself, and certainly, in the absence of evidence that the letter had been lost or misplaced by the witness, the contents thereof were inadmissible. Then, too, the contents of letters would have been clearly incompetent as hearsay. Arndt v. Ins. Co., 176 N. C., 652; Mahoney v. Osborne, supra; Bixler v. Britton, 192 N. C., 199. These letters related to matters in issue and were not collateral to the question in controversy. There are other exceptions in the record, but, as a new trial must be awarded for the error specified, it is therefore unnecessary to discuss these exceptions. New trial.