Thrall v. Todd

Kellogg, J. The disclosure of the trustees in this case states that they were indebted on* account of the labor of the principal defendant, while in their employment, but they claimed that they were not chargeable, as his trustees, because he had assigned to Melzer Edson the amount due from them for his labor, and that Edson had given them notice 'of the assignment; and the testimony on their part showed, that the assignment was in writing, and had, previous to the service of the trustee process, been left with their treasurer, Mr. Gibbons, who testified that he did not know where it was-; that he might have it among his papers, and might have given it to the attorneys of the trustees. The report of the commissioner states that this order or assignment, executed by the principal defendant in favor of Edson, was not produced before him, and that the plaintiff called for its production, and objected to the introduction of parol proof of its contents ; but that the commissioner decided, on the testimony of Mr. Gibbons, that it was shown that the paper had been mislaid or lost, and admitted parol proof, of its contents. On the argument of the case in this court, it was admitted that, on the hearing in the county court on the commissioner’s report, the plaintiff excepted to this decision of the commissioner, and that the exception was overruled, and that the case should now be considered as if the plaintiff’s exceptions stated that fact, and referred and were applicable to that decision. This presents the question whether there was sufficient proof of the loss of the order or assignment to justify the decision of the commissioner allowing its contents to be proved by parol. From the commissioner’s report and the testimony annexed to the same, to which reference is made by him, it appears that no proof was offered to show that a search had been made for this order or assignment either among the papers of'the treasurer or of the attorneys. From the character of the [100] disclosure made on the part of the trustees, its contents became material, and it is referred to in the testimony of Edson, who was a witness for the trustees, as the evidence of the assignment from the principal defendant to him of the debt due from the trustees. In respect to the degree of diligence necessary in a search for a lost instrument as preliminary to the admission of secondary evidence of its contents, a party is expected to show that he has in good faith reasonably exhausted all the source(s of information and means of discovery which the nature of the case would naturally suggest, and which were accessible to him. We do not think that there was any satisfactory proof of the loss of this paper. For aught that appears, it might have been readily found on a search or inquiry for it in the direction indicated by the testimony of the treasurer. Before parol evidence of its contents was admitted, it should have been shown that a search for it had been made, in good faith and with proper diligence, in the place where it was likely, to be found, and that such search proved ineffectual. 1 Greenl. Ev., sec. 558; Niles & Atkins v. Moulton, 11 Vt. 470; S. C., 13 Vt. 515; Town of Royalton v. Royalton and Woodstock Turnpike Co., 14 Vt. 311; Fletcher et al. v. Jackson et al., 23 Vt. 581. We think, therefore, that the plaintiff’s exceptions to the sufficiency of the proof of the loss of the paper in question, and to the admission of secondary evidence of its contents before a reasonable presumption of its loss was established, were well taken, and that the plaintiff is entitled to have the case re-committed to the commissioner for a new hearing. This conclusion renders it unnecessary to consider the other points made on the argument. The judgment of the county court in favor of the trustees is reversed, — the report of the commissioner is set aside, — and the cause is remanded to the county court for further proceedings.