Niagara Fire Insurance v. Whittaker

Downer, J. The circuit court erred in refusing parol evidence of the duplicate of the contract alleged in the answer to have been signed by the defendant and delivered to the plaintiff. It was not necessary to give any notice, other than that given by the answer, to the plaintiff to produce that duplicate, in order to entitle the defendant to give parol evidence of its execution and contents. Hammond v. Holbrook, 13 Wend., 505; Hardin v. Kretsinger, 17 Johns., 293; Cowen & Hill’s Notes to Phil. Ev., Part 2, 427, note 235. If the duplicates (duplicates in all respects except the signature), one signed by the defendant, the other by the plaintiff, had been in evidence, a valid contract between the parties would have been proved. [331] Nor do we think it could have been terminated before the expiration of the five years, at the pleasure of either party, without liability to pay damages to the other. By the Court — The judgment is reversed, and a venire de novo awarded.