Shaw v. Mason

The opinion of the court was delivered by Brewer, J.: Plaintiff brought suit in the district court alleging that he had built a house for defendant under a written contract, and seeking to foreclose a mechanic’s lien. He also caused an attachment to be issued and levied. The district court gave him a personal judgment for the balance due on the contract, but refused the foreclosure, or to grant .an order of sale of the projaerty attached. Of this he complains, and by proper motions brings the questions here. At the outset we are met by the objection of the defendant that the plaintiff ought not to have had any judgment, and therefore was not wronged by failing to obtain all he claimed. The petition alleged a contract in writing, and that it was in the possession of the defendant. This the answer denied. Upon the trial, the plaintiff testified that he made a contract in writing and that the contract was left with General Deitzler; that he had asked Deitzler for it, but did not get it. General Deitzler then testified that he did not have the contract; that it was not given to him, but to his wife, who kept it in her trunk with her jewelry, and that she was then at or near Lexington, Mo. Upon this the plaintiff was asked to state what the contract was between him and the defendant. This was objected to on the ground that the writing was_the best evidence, but the objection was overruled and parol testimony admitted of the agreement between the parties. "Was this error? “It is a well-settled principle of law, governing the introduction of testimony, that secondary evidence of the contents of written instruments is not admissible when the [189] originals are within the control or custody of the party, or when -they are within his reach, and may be obtained with reasonable effort on his part.” Guthrie v. Merrill, 4 Kas., 192. It is hardly necessary to recite authority upon a proposition so elemental, and resting upon such clear reason. If authority were needed, text-books and reports would furnish ample. Now, the testimony fails to show that plaintiff had not himself the contract at the time he was giving parol testimony of its contents. Eor aught to the contrary in the record plaintiff may have applied to and received it from Mrs. Deitzler. He nowhere says that he has not got it, or that he is ignorant of its whereabouts. We may infer from the entire testimony that the contract was probably with Mrs. Deitzler, in Missouri; but this is by no means certain. And if it were, has the plaintiff shown such reasonable effort to obtain it, as will justify secondary evidence of its contents? It does not appear that he made any effort to obtain it from Mrs. Deitzler. He made no application to. her, caused no subpoena to be issued for her, made no attempt to take her deposition. There is some conflict between the authorities as to how far a party may rely upon absence from the state of a written instrument as a basis for secondary evidence of its contents. It has been likened to the absence of a subscribing witness, and in the following cases the question has been more or less fully considered : Townsend v. Atwater, 5 Day, 306; May’s Adm’r v. May, 1 Porter (Ala.,) 229; Lewis v. Beatty, 8 Martin, U. S., 287; Harrell v. Ward, 2 Sneed (Tenn.,) 610; Shepard v. Giddings, 22 Conn., 282; Brown v. Wood, 19 Mo., 475; Eaton v. Campbell, 7 Pick., 10; Boone v. Dyke's Legatees, 3 T. B. Mon., 530; Bailey v. Johnson, 9 Cow., 114. While q contract is in a foreign state its ’production cannot be compelled. But the question as to how it happens to be in that state may become material. Was it placed there through the instrumentality of the party seeking to introduce the secondary evidence? Is it permanently or only temporarily there? Has the custodian been applied to for the instrument, or if applied to refused to deliver? In Shep [190] ard v. Giddings, above cited, the custodian resided in a foreign state, and refused to deliver the instrument but attached a copy to his deposition. The copy was held to be admissible, as this was the best evidence it was in the power of the party to produce. In Harrell v. Ward two subscribing witnesses 'were shown to be “now absent from the state.” Secondary evidence was held inadmissible, it not appearing why they were absent, or whether they were absent permanently or temporarily. In this case the record is silent upon all the questions suggested. For aught that appears the custodian may have left the state the day before the trial, at the instance of the plaintiff, to avoid the production of the contract, and intending to return on the day succeeding; We may not go outside the record, and appeal to our personal knowledge of the parties or witnesses, but must decide the case simply upon the record, and upon that we are constrained to say there was not such proof of diligence on the part of plaintiff as justified the admission of secondary evidence of the terms of the contract. But it is contended by plaintiff that the exception to the introduction of this secondary evidence was not reduced to writing until after the close of the term, and now improperly appears in a case made by the plaintiff. It is true the case was made by the plaintiff. But it has been decided by this court that “if the bill of exceptions orease made, as presented to the district court by the party aggrieved, does not state all the facts, and the exceptions of both piarties on the point presented, it is the right of the other party to have such facts or exceptions inserted before the bill of exceptions or case madeps signed.” Glass Co. v. Ludlum, 8 Kas., 40. Granting time to plaintiff beyond the term to make a case, does not destroy the right of defendant to have all the facts and all the exceptions preserved. Perhaps if the term had closed when the case was signed she may not avail herself of that exception in the plaintiff’s case to obtain † reversal of the judgment. She may perhaps be debarred from any affirmative relief, but nevertheless may avail herself of the exception as a protection [191] against further wrong. Again, it is contended that the personal judgment cannot be inquired into. “There have been no ■exceptions taken to it; the plaintiff does not seek to reverse it; and until an application is made by the defendant, in a proper way, to reverse it, it must stand; and so long as it stands, it is conclusive as to all the facts necessary to sustain it.” We •do not think the conclusion follows, which plaintiff desires. Of course, the personal judgment 'stands till the defendant •obtains a reversal. If the judgment had been rendered .against her without any testimony, it would nevertheless be •& valid judgment till she moved to set it aside. A judgment is erroneously rendered against her for part of the plaintiff’s •claim. She waives the error, content to let the judgment for that portion of the claim stand. Plaintiff now asks us to reverse the rightful ruling of the district court in favor of the defendant, because the defendant has not asked us to •disturb a wrongful ruling against her. If the defendant is •content to let the matter stand, the plaintiff ought to be. He has gotten more than under the evidence he was entitled to, .and cannot fairly make the sufferance of the defendant the basis of a still larger claim. The judgment of the district •court must be affirmed. All the Justices concurring.