Nealley v. Greenough

Bell, J. It is settled here that a party to a cause is a competent witness to prove the loss or destruction of an original paper, in order to the introduction of secondary evidence of the contents of the paper. Neil v. McClintock, 5 N. H. Rep. 355; Woods v. Gassett, 11 N. H. Rep. 442. Upon the same principle, there can be no doubt that the affidavit of a party is competent to show that such paper is in the hands of the adverse party. That fact is sufficient to account for the absence of the original paper. If the paper is shown to be lost or destroyed, the secondary evidence of its existence and of its contents may at once be offered. But where it is shown to be still in existence, but to be within the control of the adverse party, it is usually necessary to show that a notice has been seasonably given to such party, to produce it upon the trial, before any other evidence can be given of its contents. 1 Greenl. Ev. 596; 2 Ph. Ev. 216; 2 Saund. Pl. & Ev. 782. But there are cases in which a notice to produce the paper is not necessary. “Where the form of the action or of the pleadings gives notice to the opposite party, to be prepared to produce a particular instrument, (then in his possession,) if necessary to contra diet the evidence of the other party, notice to produce the instrument is not necessary. Hammon v. Hopping, 13 Wend. 503; How v. Hall, 14 East 274; Scott v. Jones, 4 Taun. [330] 865; Whitehead v. Scott, 1 M. & R. 2; Benher v. Jarratt, 3 B. & P. 143; Jolley v. Taylor, 1 Camp. 143; People v. Holbrook, 13 Johns. 90; Hardin v. Kritsinger, 17 Johns. 293; Bissell v. Drake, 19 Johns. 66; McLean v. Hertzog, 6 S. & R. 154; Commonwealth v. Messinger, 1 Bin. 273; Kellar v. Savage, 2 App. 199; Hart v. Robbinett, 5 Miss. 11; 3 Banv. Inst. 391; 2 Saund. Pl. & Ev. 782; Leavitt v. Simes, 3 N. H. Rep. 14. Here the action was founded upon the order alleged to be accepted by the defendant. The defendant, as the evidence shows, had it in his possession. He must be aware that the evidence must relate to that order, that the evidence must be secondary, and that if such evidence should prove to be erroneous or false, the original paper would be necessary to set it right. We can hardly imagine a case coming more clearly within the principle stated in those decisions. Another case, where a notice to the adverse party to produce an. original paper is not required, is where the party has obtained possession of such paper by fraud. Gray v. Kernahan, 2 Rep. Const. Con. 65; Davis v. Spooner, 3 Pick. 284; Doe v. Ries, 7 Bing. 724; Edington v. Nixon, 2 Bing. N. C. 324; People v. Holbrook, 13 Johns. 90; Commonwealth v. Snell, 3 Mass. 82; 3 Banv. Inst. 391; 1 Greenl. Ev. 597; 2 Ph. Ev. 225; 2 Cow. & Hill’s notes 425; 2 Saund. Pl. & Ev. 782; Leeds v. Cook, 4 Esp. 256. The affidavit of the plaintiff does not, perhaps, go far enough to fix upon the defendant the charge of fraud in obtaining or withholding the order; though it is difficult to perceive how a paper like this could be kept back and withheld upon the trial, except for some fraudulent purpose. Secondary evidence being properly admitted, it becomes a question if that offered in this case was sufficient to prove the plaintiff’s cause of action. Generally, the party who is driven by the loss or destruction of a paper, and a fortiori when compelled by the withholding of a paper by his adversary, to resort to secondary evidence, is confined to no [331] particular species of evidence. It may be more or less direct, or merely circumstantial. Any evidence which would be competent to prove the like contract resting merely in parol, will be admitted to prove what were the contents of the written agreement. 2 Ph. Ev. 236; Brown v. Woodman, 6 Car. & Payne 206; Doe v. Ross, 2 Daw. Pr. Ca. 389; Hall v. Ball, 3 Scott 579. A party who, having a deed or other written instrument in his possession, withholds it from inspection, has no right to complain of the inferiority of any kind of evidence that may be brought by the other party to supply the place of the original. He is himself the cause of the inferior evidence, by keeping back the best. Doe v. Wainwright, 5 Ad. & El. 520. A verbal agreement, by which one person, at the request of a second, should engage to assume and pay the debt ofN the second to a third person, when assented to by the third, in discharge of the second, is binding. Any evidence which would be competent to prove such an agreement, would be equally so to prove an agreement in writing of the like kind, where the writing was lost, or in possession of the defendant. If the defendant, upon the nature of the claim being distinctly stated to him, made no objection, but admitted expressly that it was a just claim, that admission must be evidence of every fact necessary to establish the claim. The effect must be substantially the same, where the admission is not in express terms that the claim is just, but what is said is of such a character as impliedly to admit its justice; as if thé witness states, as is here done by Rolfe, that he showed to the defendant a copy of the writ, and read to him that copy, and a copy of the return of the arrest and bail, (which is what we understand by the witness’ expression “ bail-piece,”) and the witness made no objection, but said he was surprised that the claim had not been paid, and that he meant to have sent on the money to pay it. These expressions naturally imply that the claim was well founded, [332] and considered as an admission, they admit every fact stated in the declaration as the foundation of the claim,- — the drawing of the order, the signature of the drawer, and the acceptance of the drawee. The like admission is very strongly implied from the expressions used to the other witness, Pettengill. The writ was shown him, with others ; he knew what the claim was, and made no objection to it, but said he would settle them all. No man would be likely to say of an unjust and groundless claim, that he was surprised it had not been paid, that he meant to send on money to pay it, and that he would settle it. Nor if the claim were- false and wrongful, would a man who spoke of it at all, be likely to be silent as to his objections to be holden upon it. These admissions tend to prove the plaintiff’s case as he stated it in his writ. No question can arise as to any particular kind of acceptance. If believed, the evidence is positive and explicit enough to prove the fact of acceptance, but it does not tend to prove an acceptance in any particular mode, and no question as to the effect of particular words or acts to constitute an acceptance, can arise here. There is nothing here which has any proper tendency to show that these admissions were made under duress, as has been suggested in the argument. A legal and proper arrest upon the demand in question, not designed to effect any other purpose than the obtaining of bail in the action, and unaccompanied with any severity or other impropriety of manner, is never to be deemed a duress. 2 Inst. 481; 2 Bac. Ab. 402; 1 Black. Com. 136; Shep. Touch. 61; 1 Banv. Inst. 227; Richardson v. Duncan, 3 N. H. Rep. 508. The arrest by Rolfe was made by him as the agent of the bail. It was made upon a copy of the writ, and the officer’s return, which here constitute the substitute and equivalent of what is known at common law and in New York as the bail-piece. For any thing which appears, that arrest was legal an d [333] proper. There is no pretence that any advantage was taken of the defendant’s position, or that he was not fully aware of his rights. If the bill was accepted, there is no question as to the consideration, since that is admitted by the acceptance, nor as to the previous dealings or relations of the parties. The evidence offered had a legitimate tendency to prove the facts alleged by the plaintff in his declaration. It was for the jury to judge of the weight and effect of the evidence, and we think it should have been submitted to them. Nonsuit set aside.