Moulton v. Mason

Campbell, Ch. J. Suit was brought by Mrs. Mason as administratrix of Charles Mason, deceased, among other things to recover the price or value of certain goods sold to Moulton by the deceased. Having introduced evidence tending to show the sale and delivery to Moulton of the property in question, and that Mason and Moulton examined and made an inventory of it, which was written in a book in Moulton’s handwriting, and taken into his possession, further proof was given on her behalf to the effect that Mason, three or four weeks before his death, called upon defendant and got from him the book containing the inventory to be copied; that he made or caused to be made for himself a copy of it, and that the book was returned to Moulton. Notice to •produce the original having been served upon Moulton, and he not producing it, an alleged copy was offered in evidence, and received against his objection. When the defendant’s case was in progress, offers were made to prove by his testimony that the paper produced was not a copy of that inventory or of any inventory of [369] any goods ever purchased by defendant of Mason, or of any inventory ever made by him at all, or which he ever assisted in making. And an offer was also made to show by his testimony when on the stand that he never had in his possession any book containing an inventory of which that was a copy. All of this testimony was ruled out. The Court also rejected his testimony, offered to show a payment made by him to one J. W. Wright, of Oswego, for Mason. Similar testimony was rejected, to show that an arrangement had been made with one Meader, before Mason’s death, whereby Moulton was to pay, and did pay, Meader for Mason a certain sum of money. We are at a loss to discover any reason for the rejection of the two latter items. Evidence of payment is always admissible in defense of an action of asswnpsit, and. if money was paid to a third person for the deceased, further proof that the payment was authorized or ratified, or the money paid over to him, would put it on the same footing as if made to himself. ■ We cannot imagine on what ground it was held inadmissible. The principal reason alleged for the exclusion of the other testimony was, that it came within the prohibition of the statute as relating to facts equally within the knowledge of defendant and the deceased. It was also insisted that by not producing the original of the inventory when demanded, he precluded himself from ■disputing the correctness of the copy. The refusal, after reasonable notice, to produce a document in possession, which the adverse party is entitled to introduce in evidence, authorizes proof by secondary evidence. But it does not dispense with such proof as is attainable, and does not allow the tenor of the instrument to be made out by anything less than satisfactory evidence of all that is essential. There is no rule which prevents [370] tbe contradiction of such secondary evidence, or which will allow a document to be conclusively proved by anything that a party may see fit to affirm to be a copy. Dispensing with primary evidence only changes the degree of evidence required, but in no way allows a case to be made out without proof, or prevents counter proof. The rule enforced in the present case is equivalent to excluding all testimony for the defense on a principal issue. This would be an arbitrary and monstrous doctrine. It seems to have been rested on the supposed rule that a party who refuses when requested to produce a document in his possession, shall not afterwards be allowed to produce it to contradict the secondary proofs of his adversary. That, however, was not attempted here. There was no admission that the paper in question was in Moulton’s possession, and the questions put to him on the defense did not call for its production. They were put in such a way as to draw out parol evidence as readily as written. But we do not perceive any very sound reason why the document itself should be excluded, if he had it. There are, indeed, some cases, which were cited on the argument, which seem to hold that a party declining to produce a document when called for under a proper notice, is estopped from producing it afterwards. There is no authority for such exclusion where it relates to his own case, even where not produced when called for by his adversary.—2 Phil. Ev. (Edward’s Ed.), 535. But this doctrine of estoppel has not found its way very generally into the text-books, and cannot be said to be among the old or established principles of the, law. It is not a rule calculated to further the eliciting of the truth. It is simply an attempt to punish one party by allowing his adversary to recover what does not belong to him, or to defend unjustly against a proper claim. Any rule, which rejects cértain proof for uncertain, deserves very little respect. [371] If such a rule could ever have been proper, there can be no reason for it now, when parties are competent witnesses, and can be compelled by subpoena duces team to bring into court any paper in their hands which their adversaries have a right to inspect, and prove. The inventory in the present case appears to have been such a document, relating to the case of the plaintiff below, and measuring or bearing upon the amount of her claim. If Moulton had it in possession, such a subpoena would have reached it. If not in his possession, a sufficient search and diligence would have been required to justify secondary proof. The remaining questions all relate to the propriety of excluding the testimony because equally within the knowledge of the decedent during his life. To see the bearing of the objection, it must be considered in connection with the facts as elicited. The plaintiff below, suing as administratrix upon a claim of the decedent against defendant, had not found it necessary to call defendant to prove anything. The whole case had been made out by witnesses. There was proof tending to show the sale of the property out of which the claim arose, — proof that the two parties made an inventory which was recorded in defendant’s handwriting,— proof that Mason obtained it of defendant some weeks before his death, and copied it or had it copied, and that he told defendant wh^ he wanted it, and proof identifying that copy. It appears from this showing that the facts material to be proved, while within the knowledge of Mason and defendant, were also within -the knowledge of others, and provable by them. It does not appear that the copying of the inventory took place in the presence of Mason and defendant, or of either of them. The whole controversy, as it appears on the record, is concerning the correctness of the copying of a written document. [372] It is certainly questionable whether the statute excluding testimony in relation to matters equally within the knowledge of the deceased and the witness, has any reference to written documents, which are designed to supersede evidence resting in memory merely and capable of perversion. But when, as here, the representatives of the deceased have the means of proving the existence and contents of the document, and take it upon themselves to do so by independent evidence, the case is not within the mischief of the law, and is not covered by it. Proof of the correctness of a copy is still more remote, and in this case appears to relate to a matter which was not jointly managed, and on which it is quite likely Mason, if living, would not have been able to testify. Any one who had compared the papers when made, or subsequently, could give evidence on this point. It is an independent fact, quite outside of the original dealings which may have given occasion for the execution of the paper, and not dispensing with proof of that execution. The copy might be made after the death of both parties, or without the knowledge of either when living. And their knowledge or ignorance could not affect its correctness. The rulings were erroneous, and the judgment should be reversed with costs, and a new trial granted. The other Justices concurred.