| Cal. | Jul 1, 1858
Lead Opinion
This is an action upon three promissory notes executed by McMickle, deceased, to Bagley and Sinton, and by them transferred to the plaintiff. At the solicitation of the maker, the notes were delivered to him in August, 1852, by the holders, and in their presence and with their consent were then destroyed. On the trial, the plaintiff, in order to account for the non-production of the notes, and to lay the foundation for the introduction of secondary evidence of their contents, read to the Court his own
It is not a matter of course to allow secondary evidence of the contents of an instrument in suit upon proof of its destruction. If the destruction was the result of accident, or was without the agency or consent of the owner, such evidence is generally admissible. But, if the destruction was voluntarily and deliberately made, by the owner, or with his assent, as in the present case, the admissibility of the evidence will depend upon the cause or motive of the party in effecting or assenting to the destruction. The object of the rule of law which requires the production of the best evidence of which the facts sought to be established are susceptible, is the prevention of fraud ; for, if a party is in possession of this evidence, and withholds it, and seeks to substitute inferior evidence in its place, the presumption naturally arises, that the better evidence is withheld for fraudulent purposes which its production Avould expose and defeat. When it
In Riggs v. Tayloe, (9 Wheaton, 488,) the plaintiff brought suit upon a contract for the sale of bank stock, executed in duplicate between the parties, each retaining a counterpart. Having lost his own counterpart, the plaintiff gave notice to the defendant, to produce on the trial the one he had, but the defendant declined doing so, alleging that he had lost his also. On the trial, the plaintiff offered to prove the contents of the contract by a subscribing witness, and to entitle him to give this testimony, made the following affidavit: “ The plaintiff in this case makes oath, in relation to the memorandum of agreement between the defendant and himself, relative to the stock in the declaration mentioned, that his impression is that he tore up the same after the transfer of the stock, believing that the statements upon which the contract had been made were correct, and that he would have no further use for the paper. He is not certain that he did tear it up, and does not recollect doing so, but such is his impression. If he did not tear it up it has become lost or mislaid ; and that he has searched for it among his papers repeatedly and cannot find it.” The defendant objected to the testimony, and insisted that no evidence of the contents of the contract should be allowed. The objection was sustained, and the defendant had judgment, and the case was taken to the Supreme Court of the United States, where it was held that the Circuit Court erred in refusing to let the evidence go to the jury, and the judgment was reversed. In rendering its decision the Supreme Court said: “It is further contended, that it. appears from the plaintiff’s own showing, the destruction or loss of the writing was voluntary, and by his own default; in which case ho ought not to be permitted to prove its contents. It will be admitted that where a writing has been voluntarily destroyed, with an intent to produce a wrong or injury to the opposite party, or for fraudulent, purposes; or to create an excuse for its non-production, in such cases the secondary evidence ought not to be received ; but in cases where the destruction or loss (although voluntary) happens through mistake or accident, the party can not be charged with default. In this case the affiant swears that if he tore up the paper it was from a belief that the statements upon which the contracts had been made were correct,
In Blade v. Noland, (12 Wendell, 174,) the plaintiff testified that he burnt up the note in suit, the morning after it was given. The destruction was deliberately made, and no explanation of the act was offered on the trial. The plaintiff had judgment in the Justice's Court, which was affirmed on certiorari in the Common Pleas, and the case was taken to the Supreme Court of Mew York, where the judgment was reversed. In rendering its decision, the Court said : “ The proof is, that plaintiff deliberately and voluntarily destroyed the note before it fell due, and there is nothing in the case accounting for or affording any explanation of the act, consistent with an honest or justifiable purpose. Such explanation the plaintiff was bound to give affirmatively, for it would be in violation of all the princijfies uj)on which inferior and secondary evidence is tolerated, to allow a party the benefit of it who has willfully destroyed the higher and better testimony. I have examined all the cases decided in this Court, where this evidence has been admitted, and in all of them the original deed or writing was lost or destroyed by time, mistake, or accident; or was in the hands of the adverse party. Where there was evidence of the actual destruction of it, the act was shown to have taken placo under circumstances that repelled all inference of a fraudulent design.”
In the case of the Bank of the United States v. Sill, (5 Conn., 106" court="Conn." date_filed="1823-07-15" href="https://app.midpage.ai/document/bank-of-the-united-states-v-sill-6573791?utm_source=webapp" opinion_id="6573791">5 Conn., 106,) the Court said: “ When the holder of a bill voluntarily and intentionally destroys it, or alters it fraudulently, he has no remedy, but if he loses, cancels, alters, or destroys it, by accident or mistake, his rights are not affected; his evidence only is impaired. A bill or note is not a debt, it is only primary evidence of a debt j and when this is lost or destroyed, bona fide, it may be supplied by secondary evidence.”
Authorities to the same effect might be cited almost ad infinitum. From them it is clear, that the cause or motive of the destruction of the instrument in suit, when voluntarily made, must determine the question of the admissibility of secondary evidence of its contents. From them it is also clear, that the facts and circumstances of the destruction must be shown in the first instance to the Court, to enable it to judge of the propriety of admitting or refusing the secondary evidence. These facts and circumstances, in a great number of instances, probably the greater number, are known only to the parties themselves, and from them alone can any proof be obtained. The same principle, then, which allows the parties to prove by their own testimony the destruction, must necessarily allow them to prove all such facts and circumstances as are requisite to the introduction of the secondary evidence. If the testimony of independent and disinterested witnesses were essential to prove these facts and
Thus, in Riggs v. Tayloe, cited above, the statement of the plaintiff, in his preliminary affidavit, of his motive in the destructien of the contract in suit, is referred to in the opinion of the Court as a sufficient explanation to remove the objection to the admission of the secondary evidence.
The preliminary proof is addressed to the Court, and of its sufficiency the Court is the sole judge. We do not find in the cases cited, nor have we been able to find any authority for the ruling that a presumption against the plaintiff, arising upon facts detailed in the preliminary affidavits, is to be explained by evidence to the jury; or for the observation of the Court below, in its opinion on the motion for a new trial, that “sometimes the facts and circumstances connected with the destruction have been submitted to the jury, to be passed upon by them in considering their verdict," unless such facts and circumstances were disclosed in the evidence offered to the jury after the question of the admissibility of secondary evidence had been disposed of by the Court.
In Page, Executor, v. Page, 15 Pick., 368, the preliminary affidavits only showed a diligent and an ineffectual search for the note in suit among the papers of the testator; it was the evidence before the jury which traced the note to the possession of the defendant, and upon the presumption of payment arising from that possession, the defendant rested as one of the grounds of „ his defence. Chief Justice Shaw, who tried the case, instructed the jury, “that ordinarily the non-production of a note by a
The plaintiff obtained a verdict, and the defendant moved for a new trial, assigning, as one of the grounds of his motion, this commentary, or rather reference to the preliminary affidavit; but the Supreme Court, in denying the motion, said : “ The only commentary made upon the affidavit was an explanation of the reason why the Court admitted secondary evidence. It was entirely proper, as some of the jury, without such an explanation of the rule of the law touching secondary evidence, might have hesitated to give a verdict upon a note which was not produced. The whole charge, it seems to us, was unexceptionable upon that point.”
We can not see anything in this case which gives the slightest support to the instructions in the case at bar. The reference to the preliminary affidavit was simply to remove from the minds of the jury any difficulty which might have arisen from the non-production of the note; and by the “whole evidence,” upon which the jury were instructed to form their opinion of the payment of the note, was meant the whole evidence before them. The presumption of payment from the non-production of the note, arising upon evidence before the jury, was, of course, to be met and rebutted by evidence before them. But in the case at bar, no such presumption could arise, for there was no evidence before the jury of any possession of the notes in suit by the intestate after their execution to Bagley and Sinton. The presumption, if any, arose upon the preliminary evidence, upon which the jury could not pass. Arising in the mind of the Court, it should have been stated at the time, in order that the plaintiff might have introduced other evidence, if he possessed it. Such presumption was disposed of by the ruling on the sufficiency of the affidavits, and in admitting the secondary evidence.
In Garloclc v. Georbner, (7 Wend., 199,) the plaintiff' sued for the amount of a promissory note, alleged to be in the possession of the defendant, and to have been given upon the settlement of a slander suit. In addition to the note, the costs of the slander suit were to be paid by the defendant. The general issue was
In this case, there was no preliminary proof addressed to the Court; and the presumption of extinguishment of the note, from its possession by the defendant, of course, could only arise upon the evidence before the jury. This case, like all the others cited, furnishes no authority for the instructions in the case at bar.
The secondary evidence being admitted, it became the province of the jury to judge of its credit and weight. It took the ptlaee of the primary evidence, and was entitled to the same consideration. It was a substitute for the original notes, and if sufficiently full as to their contents, it pfiaced the plaintiff in the same position in Court as though the secondary evidence had never been required. (Jackson v. Betts, 9 Cowen, 222.) The distinction between primary and secondary evidence, has reference to its quality, and not to its strength. Secondary evidence may be equally conclusive as primary. In the present case, the former existence of the notes, their contents, their execution by the intestate to Bagley and Sinton, and their assignment to the plaintiff, were fully established by the secondary evidence; yet
The objection that the bond in evidence does not prove the delivery of the notes in suit, to Bagley and Sinton, we do not think tenable. The instrument was intended for the protection of the intestate; it contains no promise on his part, but an obligation to him of $12,000, for the fulfillment of its condition by Bagley and Sinton. It recites the entire agreement between the parties, and the amount “ due Bagley and Sinton ” on the day of its execution, and that the intestate “ has executed unto ” them the three promissory notes in suit; and specifies the deed to which he shall be entitled on their payment, and the consequences of default. The terms “ has executed unto,” when applied to instruments of writing, import both making and delivery. The recital of the fact, under seal, that the intestate “ has executed unto the said Bagley and Sinton,” in the past tense, the notes can have but one meaning, namely: that the intestate has made and delivered the notes to them.
The judgment of the Court below is reversed, and the cause remanded for a new trial.
Concurrence Opinion
I concur in reversing the decision of the Court below. Conceding that the secondary evidence was properly admitted, the plaintiff was entitled to a verdict. But I express no opinion as to the question whether affidavits were admissible to prove the destruction of the notes, when the plaintiff and the witness could have been examined in open Court, and none as to whether the facts embodied in the affidavits proved the destruction of the notes by accident or mistake, so as to justify the admission of secondary evidence of their contents. Were we to decide these questions, under the existing state of the case, we might make a decision of questions immaterial, as the plaintiff may prove a different state of facts upon another trial. The learned counsel for plaintiff states, in his brief, that‘‘had the Court sustained the objection of defendants’ counsel to the introduction of secondary evidence of the notes, because not satisfied, the plaintiff would have offered further preliminary proof.” These questions have never been decided by this Court, but our decisions have turned upon other grounds.