Alabama Construction Co. v. Meador

143 Ala. 336 | Ala. | 1904

ANDEBSON, J.

While no general rule can be laid down as to the degree of diligence to be used in making search for the original document, in order to lay a predicate for the introduction of secondary evidence of the contents thereof, it depending largely upon the circumstances of the ease and the character of the document, yet the loss should invariably he proven by the custodian. “The loss must be proved, if possible, by the person in whose custody it was at the time of the loss, if such person is living, and if dead application should be made to his representative and search made among his documents.” — 26 Am. & Eng. Ency. Law, 167, and cases cited ; O’Neal v. McKinnon, 116 Ala. 606.

In this case the letter was left with Messrs. Canter-berry and Gilder and no evidence was offered to show that tilieir evidence could not have been procured. The fact that plaintiff made searches in their office and with them and did not find it, does not establish the fact that it is lost or beyond their control, and a sufficient predicate was not laid for the proof of the contents of the letter by parol evidence. As the trial court erred in admitting the proof as to the contents of this letter, upon which the plaintiff relies to fasten the liability upon the defendants, the other questions assigned are hypothetical and it is unnecessary for us to decide them upon this appeal.

Reversed and remanded.

McClellan, C. J., Tyson and Simpson, J. J., concurring.

To be reported.