McMillan v. Bethold, Smith & Co.

Mr. Justice Bbeese delivered the opinion of the Court: There are two affidavits found in this record, made by the same person as agent of the plaintiffs of the loss of the note made by defendant to them. The first was made October 31, 1861, and alleges the note to be lost or mislaid. The other was made November 8, 1861, and states that the note referred to. in the first affidavit was not indorsed by the payees, and that it was lost by affiant in the city of Alton, and was advertised in a daily paper there, and that due diligence was exercised to obtain its recovery. The note was either picked from his pocket or mislaid in a memorandum book in some store in Alton. The suit was brought on the note and on the common counts, and a verdict and judgment for the plaintiffs. It is objected that the proof of the loss is not sufficient, and secondary evidence of the contents of the note should not have been admitted. The affidavit of November 8, states distinctly that the note was lost in Alton, and that it was not indorsed. Though this statement was qualified by the subsequent statement in the same affidavit it is sufficient, being made by the agent of the payees, to permit evidence of the contents of the note. The note was not indorsed, consequently the defendant was in no jeopardy. No claim against him could be thereafter sustained on the note. This judgment could always be pleaded in bar, as a copy of the note was filed with the declaration. Had the note been adapted to circulation by an indorsement, then, indeed, might absolute proof be required that the note was actually lost or destroyed. This is the view taken by this court in the case of Rogers v. Miller et al., 4 Scam. 335. The evidence of the affiant who was also sworn on the trial as a witness, goes to show that the note was lost or picked from his pocket. This, we conceive, was sufficient to let in secondary evidence of the contents of the note. This note can never again come up in judgment against the makers. But waiving this, the proof of loss being sufficient, the plaintiffs need not resort to the contents of the note. They could recover on the count for goods sold and delivered, which, in this case, was whiskey, and the loss of the note would stand in place of a surrender of the note. We see no error in the record, and therefore affirm the judgment. Judgment affirmed.