Bank of Mobile v. Meagher & Co.

A. J. WALKER, C. J.— One of the questions arising in this case is, whether section 2151 of the Code, which provides a remedy on certain instruments lost or destroyed, abrogates any pre-existing remedy. Our old statute, enacted in 1828, (Clay’s Digest, 382, § 9,) was not so essentially different from the latter statute as to afford any reason for a different decision of the question above stated under those two acts. It was decided by this court, that the act of 1828 “ must be regarded as furnishing a cumulative remedy, and not as repealing or annulling all others, which were previously recognized at law.” Branch Bank at Mobile v. Tillman, 12 Ala. 214; Posey & Coffee v. Decatur Bank, 12 Ala. 802; Bank v. Williams, 13 Ala. 544. The re-enactment in the Code of the act of 1828, in all [627] that concerns the question above stated, must betaken as a legislative adoption of the judicial construction, which it had received in reference to that question.—Sartor v. Bank, 29 Ala. 353; Duramus v. Harrison & Whitman, 26 Ala. 326. We therefore decide, that any common-law remedy, which wou'd have been available to the plaintiff in this case, in the absence of a statute, is unaffected by any legislation in this State. Section 2151 of the Code contains a clause in the following words: “But this section must not be so construed, as to authorize a suit for the recovery of a note or bill, issued by an incorporated bank to pass as money, and alleged to be lost or destroyed.” This clause does not import an inhibition of all actions at law for the recovery of lost or destroyed bank-bills, nor can such inhibition be implied from its language. The natural effect of the language is merely to exclude the idea, that any action was authorized or given bj' that section; and a more extended meaning cannot be given to it, without a material addition to its legitimate import. [2.] Where a bank-bill, which passes from hand to hand by delivery, is merely lost, an action at law cannot be maintained against the bank by the holder at the time of the loss, because the bills might be found and presented to the bank for payment. But this reason totally fails of any application, in the event of the utter destruction of the bills, or in any other contingency which renders a second payment by the bank impossible. The authorities fully sustain the proposition, that the liability of a bank to the holder of its bills is not extinguished by the destruction of the bills, which is but the evidence of the debt; and that after such destruction, an action at law may be maintained by the owner against the bank. In such case, the necessity of indemnifying the bank does not exist; and, consequently, there is no reason for driving the owner of the bills into chancery.—Bank of Mobile v. Williams, 13 Ala. 544; Armat v. Union Bank of Georgetown, reported in 16 Niles’ Register, 360; Patton v. Bank, 2 N. & M. 464; Bank of Louisville v. Simmons, 14 B. Monroe, 306 ; Housdale v. Bank of Orange, 6 Wend. 378; [628] Wade v. New Orleans Can. and Bank. Co., 8 Rob. (La.) R. 140; Bullet v. Bank of Penn., 1 Wash. C. C. R. 172; Martin v. Bank of United States, 4 Wash. C. C. R. 258; Bank of United States v. Lill, 5 Conn. 106; Bank v. Aersten, 3 Scam. 135. [8.] The omission of a description of the bills, as to their dates, in the first count of the declaration, was not a fatal deficiency. It is generally sufficient, in pleading, to aver that which is necessary to the plaintiff’s recovery. Where the time at- which a note falls due is dependent upon its date, it would be material to set forth with certainty the date. And it is necessary, in declaring upon a contract, to aver all that is necessary to give a correct idea of what the contract was, and to furnish the jury with a criterion for the assessment of the damages. 1 Chitty on Pleading, 255, 303. When, in this case, the complaint informs us that the contracts of the hank were fourteen several one-hundred-dollar bank-bills, made and issued by the defendant; that they were the property of the plaintiff, were destroyed by fire, and that a demand was made,—all that is requisite to the maintenance of the action is shown. Neither the right to a recovery, nor the amount of it, is dependent upon the date. The notes were payable upon demand, as we must judicially know, because they were bank-bills. [4.] The question, as to the degree of certainty with which it is requisite that the destroy ed bills should be identified, is new in this court; but the principles by which it is to be determined are of frequent application, and well recognized. This is simply a case where a recovery is sought, upon written contracts, which have been destroyed. The best evidence cannot be produced, and there is a resort to secondary evidence. It was incumbent upon the plaintiff to prove, that the banknotes once existed. Of that fact slight evidence was sufficient.—1 Greenleaf on Ev. 558. And tbe proof in this case, on that point, certainly was sufficient. The loss was also proved, with much greater certainty than is usually deemed requisite in making out the proof preliminary to the introduction of parol evidence of the contents of the [629] destroyed papers. The question remains, then, was there the requisite proof of the contents ? The proof discloses nothing more, with regard to the contents of the bills, than that they were of the issue of the Bank of Mobile, and altogether amounted to $1400 at least. The witness does not state even the amounts of the several bills, which collectively made up the sum of fourteen hundred dollars; nor was he able to say positively by whom the bills were signed. This evidence is totally insufficient to prove the contents of the bills. Indeed, it amounts to no proof whatever of their contents. The rule as to the character of evidence requisite to establish the contents of a lost paper, laid down in a note to Greenleaf on Ev. § 558, is, “that the secondary evidence of its contents, or substance of the contents of its operative parts, must be clear and direct.” In the case of Tayloe v. Riggs, 1 Peters, 600, Chief Justice Marshall said, when a written contract is to be proved, not by itself, but by parol testimony, no vague, uncertain recollection concerning its stipulations ought to supply the place of the written instrument. The substance of the agreement ought to be proved satisfactorily; and if that cannot be done, the party is in the condition of every suitor in court, who makes a claim which he cannot support.—See, also, United States v. Button, 2 Mason, 464; Metcalf v. Van Benthuysen, 3 Comstock, 424; Mariner v. Saunders, 5 Gilman, 118; Shorter v. Sheppard, at the present term. To hold the proof in this ease sufficient to establish the contents of the lost papers, would not only be unauthorized by the books, but would, in effect, abrogate the rule requiring proof of the contents of lost papers. The evidence of the contents of the lost papers being totally insufficient, the court erred in the charges given, because they authorized a verdict for the plaintiff, without proof of the contents of the lost papers; and there was also error in the refusal to charge as requested, for, if there was no identification of the notes in any way, there was no proof of their contents. The judgment of the court below is reversed, and the cause remanded.