Magie v. Herman

Gileillan, C. J. There was evidence tending to show that the telegram, the contents of which plaintiff offered to prove by parol, was sent by direction of Herman, one of the defendants, and it had been lost or destroyed. When one commences a correspondence with another by telegraph he makes the telegraph company his agent for the transmission and delivery of his communication, and the transcribed message actually delivered is primary evidence. Wilson v. Minneapolis Co., N. W. R. Co., 31 Minn. 481, (18 N. W. Rep. 291.) Every other evidence of its contents is secondary, and, as to its admissibility, stands on the same footing. One kind of secondary evidence — as, for instance, a written copy — may be. more satisfactory than another, but it is no more admissible than any other secondary evidence. The court below therefore erred in excluding the parol evidence of the contents of the telegram on the grounds stated in the objection, which went only to its competency. If we could see that this error did not prejudice the plaintiff, if we could see that the telegram, if proved, would not tend to establish anything material to the case, a reversal because of the error might be avoided. But confining the objection to the question of competency must be taken as a concession that, if competent, the evidence is admissible as against any other objection, including any that might go to its materiality. It is a concession that, if competent, the evidence is material. Judgment reversed, and new trial ordered.