Sally's Administrators v. Capps

COLLIER, C. J. — It has been often ruled that an agent who collects money in the course of some lawful employment, is not liable to'á suit until payment has been requested by his principal, ‘or some one authorized to make a demand: (Barton v. Peck; 1 Stewt. & Porter’s Rep. 486: McBroom et al. v. The Governor; 6 Porter 32; and the cases there cited.) The facts disclosed in the bill of exceptions show that the intestate collected money for the defendant in error, as a mere agent. There is no ■proof that’he was to account at any period prescribed; so that for any thing appearing, he was only bound to pay on demand. Tt is not intimated that the intestate did not perform his agency so far as he‘had acted, with the most perfect honesty. There 'is nothing to distinguish the present from an ordinary case of agency’, and the law as stated, is strictly applicable. There is perhaps no rule of evidence which allows of more 'exceptions than that ivhich requires the best evidence to be ‘adduced, which the case admits of. This rule is founded upon ^■reasonable suspicion that the substitution of inferior for better [123] evidence, arises from some sinister motive, and an apprehension that the best evidence, if produced, would alter the case to the prejudice of the party. It assumes that the transaction admits of better evidence; and though this may be true, yet if such better evidence is lost, or cannot be produced, proof of a secondary character may be adduced. So the rule being intended to guard against fraud, it ceases to operate where the presumption of fraud does not arise. Hence, a copy of public documents is admitted, to prevent inconvenience, or danger of loss, from the removal of the original. And the rule does not apply where the adversary has admitted the facts which are to be proved, for he is in general, barred by bis own admission or representation. Let us apply the last exception to the rule, to the facts in the record. The witness stales that he acquired a knowledge of the amount of the note, not only from having seen it, but also from, having beard the intestate and the defendant in error speak as to the amount. The witness does not say in so many words, that he beard the intestate say what sum the note expressed on its face; yet he does not intimate that there was any difference upon, this point, between the intestate and the defendant. It might then well be inferred, that they agreed in the conversation which they had in the presence of the witness. In this view, the evidence was admissible, as an admission by the intestate of a fact shown by the note. We lay no stress upon the fact that the note had been paid, and probably destroyed, as the decision of the County Court may be sustained by the influence of the exception stated. On the first point noticed, the judgment is reversed, and the case remanded.