Otto v. Trump

Mr. Justice Clakk delivered the opinion of the court, March 28th, 1887. It is conceded that E. D. Trump was an accommodation indorser of the note on which the original judgment against him was obtained in favor of Knapp & Thompson; he therefore occupied the relation of a surety, and in the event of his being obliged to pay the debt was entitled to subrogation to the rights of Knapp & Thompson, as against A. T. Nichols & Co., the principal debtors. His defence upon the scire facias was that the plaintiffs had compromised their claim against A. T. Nichols & Co. that they had, with the leave of,.and under the authority of, the Court of Common Pleas of Lycoming county, which had jurisdiction of their accounts, assigned their claim against A. T. Nichols & Co., to one Robert M. Foresman with whom A. T. Nichols & Co., had subsequently effected a settlement and compromise, and that the debt, for which the defendant was simply a surety, was thereby extinguished. The defendant,-therer fore, maintained that, as by the compromise the original and principal debtors were discharged, he was in like manner discharged, for, in the event of his being compelled in this action to pay the balance of the debt,-he has by the act of the plain [429] tiffs been deprived of his equitable right and remedy'of subrogation. To maintain the issue on his part the defendant first offered the record of the proceedings of the Common Pleas of Lycoming county, in which authority was given to the assignees to effect a compromise. The petition set forth in substance that a suit in equity was pending in the Hustings Court in the city of Portsmouth, brought by Knapp & Thompson against A. T. Nichols to set aside a conveyance made by A. T. Nichols to Eliza Nichols, his sister, in fraud of creditors; which suit was still pending in the Court of Appeals, etc., that the assignees had received an offer of $1,500, in cash, for compromise of the “ Knapp claim,” as set forth in a telegram annexed thereto, and praying the court to authorize them to accept the terms of compromise offered. Upon due consideration, on the 22d January, 1881, a rule to show cause was granted, which'rule was afterwards made absolute. The relevancy of this offer did not perhaps fully appear at the time it was made, but it could not be said to be wholly irrelevant ; the subject-matter of the proceeding was a claim of Knapp & Thompson against Nichols, whether it was the same claim for which Trump was surety did not certainly appear, but the defendant was not bound to exhibit his whole case in a single offer; the identity of the debt was the subject of further proof, and the order of the evidence is a matter largely in the direction of the court. The subsequent proofs, however, fully justified the admission of the offer. The defendant’s next offer was a copy of an assignment, dated 25th of November, 1881, made by Otto and Hazlett, the assignees, and Knapp & Thompson to Robert M. Foresman of a certain case entitled Daniel B. Knapp and William F. Thompson against Albert T. Nichols,” transferring all their right, title and interest “ in and to the claim of plaintiff in the above entitled case, debt, interest and costs, with full power to prosecute, settle or discontinue the said suit now pending in the Court of Appeals in the state of Virginia, as to the said Foresman may seem proper.” To this it was objected, first, that copy was not receivable in evidence, excepting upon proof of the loss’ or destruction of the original; and second, that if admissible at all, it could only be by an exemplification of the record and the Act of Congress of 1790. It was conceded that the original was on file and constituted part of the record in the Court of Appeals of Virginia; it was therefore out of the power of the defendants to produce it, and secondary evidence in some form was necessarily resorted to, to establish its existence, execution and contents. Secondary evidence is admissible to establish the execution of a paper where the subscribing wituess is out [430] of tbe jurisdiction of the court, as if he were dead: Truby v. Byens, 6 Barr, 347; the original entries of a tradesman or merchant may be given in evidence when the clerk who made them is out of the state, on proof of his hand-writing: Cronin v. Miller, 10 S. & R. 155; his absence from the state has the same effect as his death : Alters v. Berghans, 8 Watts, 77. Upon the same general principle, in Ralph v. Brown, 3 W. & S., 399, where the question was upon the admissibility of a copy of a release, it was said that as the original paper was in the hands of a person who could not be reached by the process of the court, it was as much beyond the defendant’s power to compel the production of it as if it had been destroyed, and it was therefore held that the contents might be established by parol. So, in Rhoder v. Seibert, 2 Penn. 18, it was distinctly decided that when the production of papers cannot be compelled, because beyond the jurisdiction of the court, secondary evidence may be given. The first ground of objection cannot therefore be maintained., i The second ground is, we think, equally untenable. It was shown that after the original had been executed and delivered to Foresman, he left it in custody of Seth T. McCormick, who, prior to sending it to Virginia prepared a copy, and he states that the copy of the assignment in evidence is an accurate, exact and examined copy of the original. It is doubtless true that the record of the proceeding in the courts of Virginia might have been certified under the Act of Congress, and if so it would have been receivable in evidence in any proceeding in Pennsylvania where it was-relevant to the issue, to show what was involved in and what was determined by the suit which was certified; but we greatly doubt whether the copy of the assignment, as such, embraced therein would be proper evidence in a suit between other parties, at least until the execution of the original was established by common law proofs. But let this be as it may, the Act of Congress of 1790 only prescribes a general mode of authentication of records; it does not exclude anj'- other evidence which the courts of a particular state may deem expedient: State of Ohio v. Hinchman, 3 Casey, 485. Other evidence, good according to established principles independently of the Act of Congress, may be admitted: Kean v. Rice, 12 S. & R., 208. As the Act of Congress has no negative words, even the records of a sister state may be established by anj^ competent proof known to the common law: Baker v. Field, 2 Yeates, 532. See, also, Snyder v. Wise, 10 Penn., 157. Where proof is by a copy, an examined copy duly made and sworn to by a competent witness is always admissible : Am. Life Ins. Co. v. Rosenagle, 77 Penn., 515; 1 Greenleaf, § 485. The copy was not offered as a detached portion of the record; [431] it was, strictly speaking, perhaps, not a part of the record; it was filed with the record for the benefit of all parties in interest for safe keeping, and for the convenience and information of those who for any purpose might have occasion to refer to the record. The offer was of the assignment, as such, by a copy thereof, duly examined and proved independently of the record. It was the assignment, in terms, of the Knapp & Johnson claim against Nichols, “ debt, interest and costs.” But it was not competent, we think, by the introduction of parol evidence, to show what the subject of the assignment was, where it plainly appeared that it was the assignment of a suit at law, the debt, interest and costs of a claim designated only, as a claim in suit, in a certain court, A copy of the record, properly certified or examined was undoubtedly the best evidence of what was involved in that suit. The parol evidence of Trump and of Nichols, in merely negative form, that they knew of no other indebtedness of A. T. Nichols, or of A. T. Nichols & Co., which could properly be embraced in the suit, was, we think, incompetent, where the record would have shown affirmatively and exactly what the claim was, which was assigned. Moreover, the effect of the parol proof, even if it had been admissible for the purpose was for the jury, not for the court; for although the testimony on the question of identification was wholly one-sided, and to the same effect, the veracity of of the witnesses, and the truth or accuracy of their testimony was certainly for the jury. The judgment is reversed, and a venire facias de novo awarded.