Townsend v. Atwater

Baldwin, J. This motion presents two subjects to our consideration : the rejection of the evidence, and the correctness of the charge. It is a general rule of evidence, that the contents of a written instrument, can never be proved by parol, until the paper is proved to be lost; or until it shall be satisfactorily shewn to the court, that it cannot, by due diligence, be obtained. In this case, it is not pretended, that any attempt has been made to procure the document. Reliance is placed on these circumstances alone, that it is out of the jurisdiction of the court, and in the hands of the assignees. Neither of these causes appears to me to be sufficient. There is nothing in the nature of the instrument, or of the claim, which could protect the assignees, if here, in withholding it; and it would be an alarming doctrine, to admit, as a thing of course, proof of the contents of every paper which may be beyond the jurisdiction of the court. Such papers can generally be easily obtained, and proof of their contents is never admitted, but from necessity. This necessity is not to be presumed, merely from the fact, that the paper is out of the jurisdiction of the court. There must be further proof; and the court must be satisfied that the paper cannot be produced. I am, therefore, of opinion, that the court, with great propriety, rejected parol proof of its contents. But however this may be, the rejection of the evidence cannot be cause for a new trial, if the charge to .the jury was correct; for, if admitted, the result would still be the same. [307] Both parties concede, that the object of the contract, was, '.hat funds should be placed iu the hands of E. & A. Town-¿end, to meet their engagements ; and that they should be indemnified. Whether the defendants contracted in their individual capacity, or as agents for the New-Sawn owners, was a question of fact, depending upon the evidence, and was very properly left to the jury. To this part of the charge, I have heard no objection. If found for the defendants, it puts an end to the suit, for want of proper parties : If for the plaintiffs, then the only important question would arise, that is, whether the facts conceded by the parties, warranted the inference, that the contract was a contract of indemnity, merely, and not an indebtedness. This the court considered purely a question of law, and as such have decided it. The transaction itself, and the nature of the contract, as agreed, shew', that the parties did not consider the defendants indebted to E. & A, Townsend, at the time they gave their note to Barlsch. Had they so considered it, they would, probably, have taken, at the same time, a note of equal amount from the-defendants to themselves. It-was in fact a mere loan of the note of E. & A. Townsend, for the accommodation of the defendants; a transaction not unusual in the course of mercantile dealings, and would have implied an indemnity, if no agreement had been expressed. But in this instance, there was an express undertaking, on the part of (he defendants, to furnish funds in season to meet the payment, and to indemnify. This, so far from implying, that payment was to be made to them at all events, excludes the idea of indebtedness, and shews, that E. & A. Townsend relied on the special contract to furnish funds, and save them harmless. E. & A. Townsend could not have maintained a suit against due defendants, immediately after executing their note to Barlseh; nor could they have done so, at the commencement of this suit. The liability of the defendants depended on future events. If the defendants had paid the note to Barlseh, instead of remitting funds to E. & A. Townsend, this, surely, would have cut off all claim of theirs against [308] the defendants ; or, if from any other circumstance, E. & A, Townsend had been discharged from the payment of their note, they could have no claim on the defendants. They can never maintain a suit against them, until they shall have paid the note, or been in some way damnified on account of it. As it is agreed, that they have neither paid the debt, nor been injured, and that long before the note to Bartsch fell due, they had become, and ever since have been, bankrupts, the defendants, of course, have never become the debtors of E. & A. Townsend, nor are they now in any way responsible to them, even in damages. Whether the defendants could retain this money, upon the equitable claim of Elnathan Atwater; or because they would be compelled at law or in equity, to pay it to Bartsch, it seems unnecessary to decide, as 1 am clearly of opinion, that from the facts conceded, the defendants were not indebted to E. & A. Townsend, at the time the copies were left in service with them, and that a new trial ought not to be granted. In this opinion, the other Judges severally concurred. New trial not to be granted.