206 P. 346 | Mont. | 1922
delivered the opinion of the court.
Action to recover a real estate broker’s commission. In two counts the complaint alleges that the defendant listed with
Plaintiff’s own evidence tended to show that on October 16, 1919, she addressed a letter to the defendant at Valier, Montana, stating that she had received a letter from a person who had seen the ranch in question and wanted more information concerning it. She asked him to write her, giving the price, terms, description, and commission he would give to her for making a sale. In answer thereto she received a letter from defendant which she later inclosed in an envelope with a letter of her own, with postage paid, addressed to J. II. Bankhead, at Logan, Utah. This letter of defendant she was not able to produce at the trial. In response to questions propounded to her, she testified that she had had considerable correspondence with Bankhead concerning sales of land other than the Kingsbury ranch. In her efforts to prove the loss of the original letter from the defendant and her inability to produce it upon the trial, she identified sis letters signed and mailed by Bankhead and received by her at Great Falls. In one of the letters dated March 8, 1920, referring to her request to return to her the Kingsbury letter, is this statement: “Haven’t found that epistle; the kids got into my papers and scattered them all over, so you can see what a hunt I have had. Should I run across it, will be glad to send it.” In
H. M. Erickson, vice-president of the Montana State Bank at Yalier, testified that, in response to a request over the telephone by Mrs. Kyle, he prepared a writing to the effect that the defendant would pay the plaintiff one dollar commission in case Bankhead and his associates bought the ranch. This paper the defendant refused to sign when requested to do so by Mr. Erickson, and, as the witness stated, gave as a reason therefor that he already “had two letters out, one to Bankhead and one to Mrs. Kyle agreeing to pay a dollar an
The argument in this court is addressed solely to the correctness of the ruling of the trial court in granting defendant’s motion for a nonsuit because the plaintiff had failed to produce the original letter of the defendant upon which her right of action is founded. The defendant’s position, as stated in his brief, is that the plaintiff failed to prove a contract in writing obligating the defendant to pay the commission sued for; and that she failed to prove that she procured or produced a purchaser, or purchasers, ready, willing and able to purchase the real estate described, upon the terms fixed by the defendant. In support of the court’s ruling he argues that the defendant came into court expecting to be confronted with the alleged written evidence of the plaintiff’s authority to sell, and of the agreement to pay the commission; and complains because she made no effort to take the deposition of J. H. Bankhead in order to prove its contents by competent evidence.
Passing the argument attacking the weight of the evidence and the credibility of the plaintiff’s testimony explaining her efforts to have him return the letter, we reach the legal question upon which this appeal must turn, vie.: Was the plaintiff entitled to give oral evidence of the contents of the Kings-bury letter? In the case of Nelson v. Gough, 61 Mont. 301, 202 Pac. 196, the opinion being by Mr. Justice Holloway, there is the following language: “Section 1855, Code of Civil Procedure of California, adopted in 1872, is identical in its provisions with sections 7872 [Revised Codes of 1907], first adopted in Montana in 1895. In Zellerbach v. Allenberg, 99 Cal. 57, 33 Pac. 786, decided in 1893, the section of the California Code was construed. The court concluded: ‘A letter
“In support of its position the court cited Gordon v. Searing, 8 Cal 49, Burton v. Driggs, 20 Wall. 125, 22 L. Ed. 299, and Manning v. Maroney, 87 Ala. 563, 13 Am. St. Rep. 67, 6 South. 343. We think it is apparent that it was the intention to incorporate in the statute a rule of evidence which had been in force generally for many years before the statute was adopted, and, while there has been some diversity of judicial opinion as to the proper application of the rule, the view expressed by the California court meets with our approval.” In 8 Ann. Cas., pages 413 to 417, will be found a full discussion of the subject and a citation of authorities supporting the rule announced.
It is undoubtedly true that the best evidence of which the case is susceptible should, as a general rule, be adduced. The exaction of anything less might impair the advantage of having agreements reduced to writing. A bare showing that the original is out of the jurisdiction may not always be sufficient. The-best evidence obtainable on which the good faith of the party tendering the secondary evidence may be tested ought to be produced. What may constitute a fair showing must depend largely upon the facts of each case. Here the plaintiff testified that she had written three letters to Bankhead, requesting the return of the original Kingsbury letter, and that, when in Great Falls on his way to view the land, appealed to him in person to deliver it to her. In Stevens v. Miles, 142 Mass. 571, 8 N. E. 426, the plaintiff in the court below testified that he received a letter and sent it to a friend in New York by mail, and that all he knew about it afterward was that his friend wrote that he had mislaid the letter and could not find it. The witness was then allowed to give the contents of the letter. Of this the supreme court of Massachusetts said: “The evidence tended to show that the original was not in the possession or under the control of the witness, and that it was
The showing of diligence was sufficient to admit the contents of the letter. as plaintiff’s authority. Judgment reversed, with directions to grant a new trial.
Reversed.