Edwards v. Rives

Malone, Circuit Judge (after statiny the facts). Two questions of paramount importance are presented by the petition or appeal, viz: (1) Whether Adam Rives was a competent witness as to the trans [96] actions and communications between himself and William Edwards; and (2) whether the chancellor erred in granting a decree for the specific performance of the alleged contract. We will proceed to discuss these questions in their order. I. Adam Rives was the plaintiff in the suit, and at the time of his examination as a witness William Edwards was insane, and represented in said suit by J alia A. Edwards as his guardian ad litem. Under, these circumstances Adam Rives was an incompetent witness as to any transaction or communication between himself and William Edwards, and his testimony touching these transactions and communications should have been suppressed. Rev. Stat. sec, 1095; Holliday vs. McKinne, 22 Fla. 153; Tunno vs. Robert, 16 Fla. 738; Stewart vs. Stewart, 19 Fla. 846, McClellan’s Digest, pp. 518-24. The answer of William Edwards-to the bill does not remove the inhibition of the statute as to the competency of Adam Rives as a witness in his own behalf to transactions and communications between himself and William Edwards, and bring him within the exception of the statute. Therefore, in considering the testimony in this case, that of the plaintiff, Adam Rives, relative to such transactions- and communications, must be excluded. II. The allleged contract for the sale of land is denied by the answer, and the burden of proof is thereby put upon the appellee; and he must establish by clear and satisfactory evidence not only the making of the-alleged contract, but the terms of it also, to entitle him to a specific performance. 22 Am. & Eng. Ency. of Law, 1075, 1076. It appears from the testimony in the record that a written memorandum of the alleged contract was made by William Edwards and delivered to Adam Rives and [97] was afterwards lost., and that diligent, but fruitless,, search was made therefor. Under these circumstances-, oral testimony of its contents is admissible to establish its terms, of which the following is a summary introduced in the present case, viz: (The testimony of Edward R. Rives relative to the contents of the lost paper writing) “I saw in Adam Rives’ possession in my field while we were sowing oats a written paper that I knew and then recognized to be in Judge Edwards’ handwriting; and signed with Judge Edwards5' name, which paper as I now recollect its contents was-an agreement by Edwards to make Adam Rives a title-to the eighty acres of land whenever he, Edwards,, should get a title or shadow of title to same; I do not remember the date-of that paper.” (The testimony of J. O. Cosby relative to the contents of the lost paper writing): “The substance of said paper is, as I recollect it, as follows: Micanopy, Florida. This is to certify that I have sold Adam Rives eighty acres of land in the north-west corner of S. — the section and numbers I can not recollect — for the sum of four hundred dollars, for which I am to give him title when I get in possession of title myself. (Signed) William Edwards.” (The testimony of J. M. Feaster relative-to.the contents of the lost paper writing): “The contents of the paper was as follows: I, William Edwards, promise to give Adam Rives titles to the place of which he is in possession, when I come into possession of titles. (Signed) William Edwards. I do not remember the date of this paper.” Upon an examination of the testimony of Edward R. Rives it will be observed that he testified neither to the language nor the contents of the lost paper writing, but simply expressed his opinion as to the effect of its. [98] contents. The opinion of the witness can not be substituted for evidence and accepted by the court as proof of the fact sought to be established. His recollection -of the language, or the substance of the contents, of éhe lost paper writing is proper testimony to establish its contents, but his opinion of the effect of the substance of its contents is not evidence for that purpose. Elwell vs. Walker, 52 Iowa, 256. The testimony of J. O. Cosby fails to show that the lost paper contained :any description or identification of the land in controversy, or the time of the payment of the purchase price thereof. These would be essential ingredients to the validity of the paper writing, if in existence, and -must be -established by secondary evidence, if lost or -destroyed, before the aid of a court of equity can be successfully invoked to enforce a specific performance of it. Patrick vs. Sears, 19 Fla. 856; Madeira’s Heirs vs. Hopkins, 12 B. Mon. 595; 22 Am. & Eng. Ency. of Law, 363, note 2. The testimony of J. M. Feaster fails to show that the lost paper writing contained the purchase price of the land, and the time of its payment. "This is also an essential ingredient in a valid agreement for the conveyance of land, and in the absence of it the specific performance of the agreement will not be enforced by a court of equity. Webster vs. Brown, 67 Mich. 328, 34 N. W. Rep. 676; Woodruff vs. Woodruff, 44 N. J. Eq. 349, 16 Atl. Rep. 4; Edichal Bullion Co. vs. Columbia Gold Mining Co., 87 Va. 641, 13 S. E. Rep. 100. The testimony of these several witnesses varies materially as to the contents of the lost paper writing, and leaves the mind in much uncertainty and doubts as to its material parts. In Taylor vs. Riggs, 1 Peters, 591, Chief-Justice Marshall stated “that the proof of the contents of a lost paper ought- to be clear ;an.d satisfactory as to the substantial parts of the [99] paper,” and we concur in his statement of the law on this subject. Fries vs. Griffin, 35 Fla. —, 17 South. Rep. 66. We think the testimony was insufficient to authorize the granting of the decree for the specific performance of the alleged contract. The decree is reversed and the cause remanded for further proceedings in accordance with this opinion.