*1 Michigan Reports. 235 knowledge first-hand of A had the fact. liberal range given to their direct and cross-examinations fairly and issue was submitted to the in a clear, plain charge complaint of which no made.
No found, reversible error is will stand affirmed.
Bird, J., Snow, Sharpe, Fellows, Wiest, c. concurred. STATE BANK v.
BARODA PECK. — — Letter Lost Evidence Loss 1. Evidence Sufficient Secondary Evidence. Permit delivered, Testimony cashier of a bank that he attorneys letter to the certain bank’s when the on, searching attorneys’ trial came after safe and all every piece stationery in their office files proof he was unable to find was sufficient permit the use of of its loss evidence.1 Copy May Testify Lost Letter Not 2. Same —Holder Failure Produce it Not Contents Where Excused. guaranteeing a letter based on In an action drafts, where of certain was lost and copy, ruling, of the trial court excluding the of defendant as to the contents thei and that introduced was not an one, ground unexplained accurate defendant’s have, which he failure claimed to testimony inadmissible, sustained, error, rendered equally court.2 divided 1351; 2Id., 1Evidence, § § 22 C. J. C. v. Peck. Bank
3. Same —Trial—Instruction. case, an instruction the circumstances Under liability es- would be that defendant’s trial court *2 by found if the tablished original, held, substantially plaintiff of the by equally error.3 court not reversible divided an E.), (Charles J. Sub- Berrien; White
Error 128.) De- 22, (Docket January No. 1926. mitted July 22, 1926. cided against by Will
Assumpsit Bank the Baroda State Judgment for unpaid H. Peck for drafts. certain Affirmed, by brings plaintiff. Defendant equally divided court. Sterling, appellant. for
John J. Harvey, appellee. Gore & brought by This action is Baroda State Bank to recover the amount of certain unpaid defendant, Peck, drafts from the Will H. who doing Chicago. is a commission merchant business following The action is based on the letter: “Chicago, 12, June “Cashier, Bank, “Baroda, Mich. “Dear Sir: confirmation of a conversation with Mr. yesterday, hereby agree Dorr I to honor all drafts payment to cover by for merchandise check made and signed by Gladys me, pre- Mrs. T. Parkinson for sentation. prefer hawing through “I should them made Chicago, Continental & Commercial National Bank of you. if as convenient for “Truly yours,
H.
“Will Peck.” Gladys
After this was received 3Appeal Error, 4 C. J. §§ Michigan Reports. daughter defendant,
Parkinson, who was buying fruit, engaged with her husband who was opened an account the name went to the bank plaintiff that in It is the claim of the defendant. agreement defendant, with its with the accordance bought they fruit, the Parkinsons would issue checks account, kept thérefor on the fund day’s and at of each the close business would total the paid defendant, upon amount and draw a draft upon people shipped. other to whom fruit was These deposited drafts were treated as cash the bank and checking in the defendant’s account. At the close of the season the drafts honored bank on account defendant, by him, paid and which were not $6,691.20. amounted to At the trial claimed upon which it based *3 permitted its action had become it to lost and was quoted. introduce the which we have here defendant admitted that he sent the bank a letter on 12, 1922, June but that denies this is a correct original ''"and produced claims that if the be it could would show that he was not to become liable for the charged. of the drafts with which he has been action, In further defense the he that on the to claims day July, 1922, 18th plaintiff of the he sent the follow ing telegram: Baroda,
“To Bank at “Baroda, Michigan. any by “Do not honor draft made on me Parkinson specifically by by unless instructed me wire or letter.
(Signed) “Will H. Peck.” says defendant that he not indebted to the was telegram bank at sent, the time his having agreement, thus canceled the he liable was not any drafts thereafter issued. bank denies having received it. issue submitted the jury alleged copy was whether the intro- Bank v. Bakoda State which that of in was an accurate dueed June on plaintiff bank to the defendant mailed plaintiff found for the brings The defendant on was entered the verdict. in ruling Complaint the is made on original the alleged receiving in evidence the that counsel defendant’s It the was insisted original was the proof offered to the loss the any second the admission not sufficient warrant in mistaken ary that counsel We think shows what the his statement as to testified regard. the Moore, cashier of Mr. plaintiff’s original letter to delivered it could not on trial came attorneys; when attorneys made un found; presence the that in his in files and of all the of their safe successful search every piece of office; over that he searched their This to find it. stationery unable bank but was permit of the use of proof of loss to was sufficient secondary evidence. ruling of court assigned
2. Error is also testify as to the refusing to allow the defendant letter, contents of in evidence had testified
an accurate The defendant long hand; him in letter was written thought that he made a he Chicago; possession attorneys and that supposed produced was not at the trial because *4 original offered to would be When he used. original paper, the
as court to the contents of the original theory that, testimony on the excluded his evidence; having lost, copy been the next best was copy any showing in that his absence produced, not be lost and could not be he should was give testimony oral of the allowed 235 —Mich.—35. Reports. Michigan [July- received offered establish evidence of the
All secondary lost was evidence. the contents failed to or to the defendant which secondary question evidence. for was account ruling May presented by is a the court’s this: give parol ap- when it of a lost document evidence produce? pears a he has is able English rule, it in Following has been held degrees secondary are that there no evidence. lost, been and the oral secondary testimony are both evidence. Both are establishing competent the contents of question paper. first was before this lost court Mitchell, Mich. 500. In that case it Eslow v. testimony sought establish oral was contents attorney. Objection power of a was lost made ground that better in the form of a holding possession. In in defendant’s testimony admissible, court, speaking by oral Campbell, Justice said: requires secondary no rule of law that “There is another, of one kind rather than evidence to be the where writing required private writing counterpart and no * * * legally presumed to exist. private papers may be no doubt made There is out secondary evidence, objection parol weight any, is one of and not of if there com- petency.” Howe, 168, 98 Mich. Phillips v. and in Dillon v. Society, 186, departed 125 Mich. Benevolent in Eslow Mitchell, laid down supra, the rule v. from paper the oral lost held competent However, if was available. Christian, 144 Mich. People reaffirmed v. Mitchell, squarely v. held rule of Eslow that there degrees in are country, authority in this shown current majority adjudications States, has *5 Bank v. rule, American as the
adopted is known what evi- best the next copy paper is of a lost holds that inad- available, oral dence, and if it English rule merits The relative missible. Wigmore on 2in American rule are discussed seq., 2in 1264 et Jones’ (2d Ed.), Evidence § Evidence, Book of
Blue § rule, English to the In we are committed this State degrees in no there are which holds that testimony of may give oral evidence, and that writing, private which is a contents of a lost letter possession though may copy have a in- his even excluding oral testi- erred in control. The court ruling prevented mony and as of the defendant fact, submitting issue evidence on the him from case, it was reversible the- the defendant It claimed is further instructing defend jury court erred they liability if found ant’s would be established copy had introduced of the letter which original. substantially copy of the evidence was jury given, charge, In court instructed liability part of the defend was no there they found that the was an exact and ant unless After consider accurate ing time the returned for the case some they They if wanted to know further instructions. copy. exact must find that was an court then them that it would be sufficient informed they substantially copy. if found it to This wrong. plaintiff’s instruction action was guaranty of which the based on a letter evidence was claimed to be an exact If it were no¡ not an exact it had value as evidence fact, erroneously in the case. there was jury might that it exact them that have so found if the court had instructed Reports. Michigan *6 substantially it to be if was shown it was sufficient not made sworn copy. The who it was subject was Mr. witness witness. cashier, Moore, the who testified: I who made copy. don’t know “I didn’t make that morning it that it. I didn’t made. I I know it was had made. don’t when typewriter I of a was made know what kind don’t copy. no doubt on. I am sure it is an exact There is it.” about alleged compared evidence that is no
There any original, he had reason for copy with the believing copy, except his it to be a recollection as identity contained. to what sufficiently paper was not shown to as an exact objection permit as evidence. While its use ground, yet the nature of the was made it on this court, testimony together the instruction of the with permitted not and the fact that defendant was testify that exact created a it was not an situ- rights. prejudicial ation most to his refused submit to defend 4. The court guaranty telegram was canceled ant’s claim that July In view of to the bank the undis telegram puted that no such was received properly refused submit the question. assignments merit discussion.
No other should be reversed a new trial granted. have costs. Defendant should Fellows, Wiest,
Snow, concurred with point J. On the second discussed Mr. judge right. trial Justice McDonald important original of an lost. Plaintiff testimony of its had of recollection contents. De- Bank v. Baeoda State letter, producing neither fendant sought so, to contra- excusing to do it, nor his failure regard. This the plaintiff dict holding cir- in the judge permit, trial did copy. upon defendant it was cumstances asked, today What were If the man business ready letter? of a lost the best evidence con- it is. The response And would be: The to a refine- cases is due flict in our own other degrees recognize reasoning ment refuses to common-sense rule right If world be followed. business should this, by Mr. Justice point third discussed to reversible does not amount McDonald *7 is affirmed. Sharpe J., concurred Bird, Steere, C. with v. HIX.
SMITH Compensation Act —Son Not and Servant —Workmen’s Master Compensa- Property Purchased With to Share Entitled Fully Discharged Obligation All Mother tion Where Law. Him Under of a deceased workman infant son widow Where support upon wholly dependent time him for at the were death, com- the widow received the of his accidental compensation pensation workmen’s under awarded