McCann v. Beach

Justice Murray delivered the opinion of the Court, (C. J. Lyons absent.) This was an action brought by McCann, the plaintiff in the Court below, against Beach, the defendant, upon a written contract executed by the plaintiff and defendant. The plaintiff gave notice in his declaration of the loss of the contract by fire, and that he should prove the contents by parol evidence. The defendant demurred to the complaint, and other proceedings were had which it is not the purpose of the Court here to advert to. Upon the trial of the cause in the Court below, the plaintiff introduced in evidence the following affidavit: “State of California, County of San Francisco. This 24th of September, 1850, personally appeared before me, Wm. Rabe, notary public, appointed and sworn to act for said county, John E. Lauer, personally known to me, who declares that the fire which, on the 14th of June, 1850, destroyed the store of Dr. Wm. Rabe, with its contents, also consumed a large leather trunk of Ferdinand McCann, stored in said store at said time, containing McCann’s clothes and papers. Sworn, &c.” The defendant objected to the affidavit of Lauer for want of notice. The plaintiff then introduced the deposition of one Farley, taken before James Cushing, a notary public of Tuba County, for the purpose of proving the contents of the written agreement declared on. The defendant objected to its admissibility on the ground that a notary public had no authority to take depositions within the county where they were intended to be used; and that the plaintiff had not [29] sufficiently established the loss of the written contract to be allowed to prove its contents by secondary evidence. The objection to Lauer’s deposition, for want of notice, is not entitled to much consideration. These affidavits are generally ex parte; and are not required to be made in court, nor subject to the same rules as ordinary depositions. The first inquiry for the Court, is as to the power of notaries to take depositions to be used in actions pending in their own counties. The 4th section of the Act concerning Notaries Public, passed March 27th, 1850, gives to notaries power “to demand acceptance and payment of foreign bills, &c.; and to exercise such other powers and duties as by the laws of nations, and according to commercial usages, or by the laws of any other state, government, or county, may be performed by notaries public.” This section is too general and indefinite in its phraseology, to warrant the Court in inferring that the power of taking depositions is conferred.by it; and it may well be a matter of doubt as to the exact meaning, the legislature intended to convey. Section 6th of the same Act, gives to notaries power “ to take and certify acknowledgments, &c.; to take depositions, and to administer oaths or affirmations, in all matters incident to the duties of their office.” It was contended by counsel, on the argument of this case, that by said section, the power to take depositions is restricted to matters incident to the duties of the office, and is not a general power to take depositions. I do not think the construction a proper one. The legislature intended to grant the general power of taking depositions, by this section; and this construction is borne out by the 239th section of the Practice Act, which provides that “ commissions for taking depositions, shall be directed generally to the county Judge, to any Commissioner, Notary Public, or other officer competent by law to take the answers of witnesses to interrogatories.” Although the general power of notaries to take depositions, is given by the 6th section of the Act concerning Notaries, the exercise of this power has been limited, and the manner provided, in the 19th chapter of the old Practice Act. By that Act, provision is made for three Commissioners to be appointed in each county, who shall have power to summon witnesses, to enforce their attendance by attachment, and take depositions in [30] suits pending in their respective counties, to be used in said suits, when the witness is a female, or is without the county, &c. There is no authority given by this chapter to notaries to take depositions in such cases; and the only instance provided by statute, is where the witness resides in another county, and a commission is regularly sued out, and directed to the notary. The mode of taking testimony by deposition, is in derogation of the common law; and it is necessary, in order to render them admissible, not only that they should be taken before the proper officer, but that every requirement of the law should be complied with. The appointment of commissioners was designed for the convenience of courts; and the legislature doubtless intended to confine the power of taking depositions in suits pending in their own counties, exclusively to them. They may be supposed to be appointed by the Court, on account of their peculiar knowledge and qualifications for such duties; in consideration of which, the law has given them plenary power to compel the attendance of witnesses by attachment. While, on the other hand, the exercise of such power by notaries, who are appointed, not on account of their legal acquirements, but to facilitate commercial transactions, would lead to much confusion. Again, it is contended by the appellant, that the evidence of the loss of the written contract was not sufficient, and that the Court erred in admitting evidence of its contents. It is a well settled rule, that the best evidence of which the case is susceptible must be produced;- and the failure to supply such evidence, unless accounted for, raises the presumption that there is something behind which the party is unwilling to disclose. The peculiar hardships of cases like the present, has given rise to a departure from the rule, that no one can be allowed to testify in his own case. Written contracts are generally kept by the parties themselves; and it would be impossible, from the very nature of the case, for them to prove their loss by disinterested witnesses ; and to require such proof would, in many cases, amount to a denial of justice. For these reasons, the party is allowed to establish the loss either by his own, or the oath of another. In the case of Jackson d. Livingston v. Neely, 10 Johns., the Court held that proof of the loss by fire of a trunk in the possession of the widow, containing the papers of the ancestor, was suffi [31] cient to admit parol evidence of the contents of a paper, although there was no evidence that such paper was in the trunk. This case goes farther than any other case which I have been able to find, and seems, at first, to be scarcely reconcileable to the plain rule on this subject; but there is a wide difference between this case, and the one under consideration. The paper could not be found; the widow had been in the habit of taking papers out of the trunk relating to her husband’s business, and giving them to his executors; it was fair to presume that the trunk was the general depository for all his papers; and the husband, to whom alone the fact had been known, was dead, (and therefore unable to testify;) and this testimony was all that the party could procure. In the case before us, the witness does not testify that the contract declared on, was in the trunk said to have been burned. This fact must have been within the knowledge of some one. Either the plaintiff, or some agent, must have deposited it there. Before proof of its contents was admitted, upon so loose an affidavit of its loss, it should at least have been shown that no evidence of the trunk containing this paper could be procured, in consequence of the death or disability of the party supposed to be conversant with the fact. The affidavit of the plaintiff, whom the record shows to have appeared in propria persona upon the trial, would doubtless have been sufficient to lay the foundation for parol evidence. As it was, the admission of secondary evidence was improper. There are many other errors assigned, which it is not necessary to pass upon. Judgment reversed, and a new trial ordered.