Greene v. A. F. Mesick Grocery Co.

*120 Hoke, J. Tbis was an action to recover $400 as money bad and received to plaintiff’s use, and was before tbis Court on a former appeal, 153 N. C., 409. Erom a perusal of that case it will appear that tbe right of plaintiffs to recover was properly made to depend on wbetber defendant company, resident at Winston, N. C., bad sent a telegram to plaintiff at St. Louis, Mo., accepting a proposal of plaintiffs to rent a hotel from defendant on terms contained in a letter from plaintiffs to defendant company. On tbe present trial defendant testified that, on receipt of plaintiff’s letter, containing tbe proposal, be bad gone to Western Union office and sent a telegram, tbe message having been written and loft with tbe company for transmission. In reference to tbis message and its contents, it appeared that at tbe time of tbis occurrence written messages, tbe kind in question, were kept at tbe local office in Winston for six months and were then either destroyed or sent to Richmond, Va., tbe bead-quarters of tbe company for tbis division; that defendant bad applied to tbe office at Winston and failed to get tbe message and bad then gone to Richmond, Va., and made inquiry and failed to procure it there, having applied for it at company’s offices. On tbis testimony, the court being of tbe opinion that the loss of tbe written message bad not been satisfactorily established, declined to allow witness to give tbe contents of tbe message to tbe jury, and defendant excepted. It was urged by plaintiff, that tbis ruling of bis Honor should be sustained, for tbe reason that tbe contents of tbe supposed message was nowhere sufficiently disclosed to render its exclusion a material circumstance; but, conceding that it is otherwise, we are of opinion that tbe ruling of tbe court must be upheld for tbe reason given by bis Honor, that tbe loss of the message has not been ¡shown so as to permit parol evidence of its contents. As heretofore stated, tbe contents of tbe telegram were a material part of tbe contract, directly involved in tbe issue, 'and, it having been admitted that the one referred to was originally in writing and accessible if in existence, these contents came within what is known and frequently referred to as tbe “best evidence” rule, forbidding tbe reception of parol testimony until tbe loss of *121 the writing lias been satisfactorily established. It is held with ns that the operation of this rule is not necessarily affected by the fact that the proper custody of the written paper is no longer within the jurisdiction of the court. We find no testimony showing that search had been made for the written message at Richmond, Va., by the officer or agent of the company haring such papers in his care, and, on the facts in. evidence, the decision of his Honor on the question presented is fully supported by authority here and elsewhere. Avery v. Stewart, 134 N. C., 287; Blair v. Brown, 116 N. C., 631; Justice v. Luther, 94 N. C., 793-797. This judgment in plaintiffs’ favor is therefore affirmed. No error.