Dunn v. Hewitt

By the Court., Jewett, J. The actual possession of the property when the defendant took it under the execution, was in Peter Dunn, the defendant in the execution, who was the former owner of it; the plaintiffs therefore were bound to prove title to the property. It is a general rule, that when written evidence of a fact exists, all parol evidence is excluded. There are, however, exceptions to the rule, such as that written acknowledgments and receipts need not be produced, or their absence accounted for, to admit parol evidence of the transactions which .they are designed to evince. (Tobey v. Barber, 5 John. 72; Southwick v. Hayden, 7 Cowen, 334.) So a bill of parcels, receipted, of the sale of articles of personal properly need not be produced to prove a sale; parol evidence is competent, on the ground that such paper generally amounts to nothing more than a receipt for the price. (Blood v. Harrington, 8 Pick. 552.) In this case the question of title in the plaintiffs was directly in issue. They claimed to have acquired title by contract with Marshall, which was shown to be in writing in the form of a bill of sale, executed by Marshall to the purchaser, and to be in the possession of the plaintiffs. This was more than an ordinary bill of parcels amounting merely to a receipt for the price. It.might have- shown a different transaction than that sworn to by Dunn. At all events I think that it should have been produced, or its absence accounted for under the general rule, upon parol evidence if the contract was.admissible. (Bullock v. Koon, 9 Cowen’s Rep. 30; Cooper v. Morrel, 4 Yeates, 341; Keely v. Ord, 1 Dall. 310; Curtis v. Patton, 6 Serg. & Rawle, 135.) The next question is, whether the justice erred in refusing to strike out the parol evidence of the contract. I think he did. It is well settled that whenever it turns out, either on the direct or cross-examination, that a writing exists with regard to a transaction, which the law regards as the best evidence, it must be produced or its absence accounted for. If this is not done, all inferior evidence that may have been given, will be stricken out and disregarded. (1 Cowen & Hill’s Notes, p. 541; Southwick v. Hayden, supra.) Judgment affifmed.