C. Callahan Co. v. Dahm

76 Ind. App. 492 | Ind. Ct. App. | 1921

Nichols, P. J.

Action by appellant against appellee to recover the amount alleged to be due upon a certain $800 promissory note.

1. The only error presented is the action of the court in permitting a witness for appellee to give oral .testimony as to the contents and as to the description of certain bank checks, which the witness claimed showed payment on the note in suit; the objection to such testimony being that the checks themselves were the best evidence and that no diligence was shown to produce them. The note was dated September 22, 1910. Two witnesses for appellee testified that Jos. B. Callahan, treasurer, who had charge of said note, admitted, November 7, 1911, that appellant had received payments upon said note more than sufficient to pay it. No suit was brought thereon until more than four years thereafter, and then appellant waited three and one-half years before making any further effort to advance the cause upon the trial docket. In the meantime the person who had the possession of the checks involved died, and before the trial his administrator, upon request, searched for them but failed to find them. Under such circumstances, the court committed no error in permitting oral testimony as to the contents of the checks. Ohio Thresher & Engine Co. v. Hensel (13), 9 Ind. App. 328, 36 N. E. 716; Lumbert v. Woodard (1896), 144 Ind. 335, 43 N. E. 302; Wigmore, Evidence §§1194, 1196.

2. But even if such action of the court had been error, it was harmless, for another witness, prior to the objectionable testimony, was permitted without objection to testify as to the contents of the checks. Wright v. Gaff (1855), 6 Ind. 416; Polk v. Haworth (1911), 48 Ind. App. 32, 95 N. E. 332. Further, appellee’s said witness Callahan testified that the note involved had been paid in full, using the following language with reference to the $800 note: “We ac-

cepted the full payment on the $800.”

The judgment is affirmed.