delivered the opinion of the Court:
• This is an action of assumpsit to recover money, the price paid by the plaintiff, Frederick G. Aukam, to the defendants, Mollie M. and Lewis C. Main, upon the conveyance of a pretended title to land in the State of Georgia, the purchase thereof or exchange therefor being induced by the false and fraudulent representations of the defendants.
The action was brought against the present appellant and her brother Lewis C. Main, but the latter was not served with prоcess, and the action proceeded against the present appellant alone. She pleaded that she was not indebted as
There are several errors assigned by the appellant on the rulings of the court below, but it will only be necessary to consider the most material of them.
It appеars that the plaintiff, the present appellee, was owner of certain real estate near the city of Troy, in the State of New York, which he valued at $22,000; and the defendants, Mollie M. Main and Lewis C. Main, were owners of а farm near the city of Washington, District of Columbia., valued by them at $22,000, the same being subject to a mortgage for $2,000. The parties agreed to an exchange of properties, and deeds were made; and the plaintiff discharged the incumbrance on the property of the defendants, and assisted them in obtaining a loan and fixing a charge upon the property conveyed to them by the plaintiff, to the amount of $5,000. And in consideration of the plaintiff’s assumption and paying off the incumbrance of $2,000 upon the property conveyed by the defendants to the plaintiff, and in further consideration of certain furniture and other personal property turned over to the defendants by the plaintiff, the former agreed and pretended to pass and transfer to the latter title to 5,000 acres of land in Tattnall County, in the State of Georgia, by the delivery to him of a deed for such land. But it turns out, as alleged and cоntended by the plaintiff, that neither title nor location of the land can be traced or found to exist in the County of Tattnall, in the State of Georgia, and that the pretense of claim to title of such land was simply a deceit and a fraud.
1. The plaintiff was a witness in his own behalf, and after testifying to the circumstances that led up to the making of the contract of exchange, he was asked by counsel for defendant whether the contract was in writing, to which the plaintiff replied that it was, and further that the agreement was left
It is not, of course, except in cases provided for by statute, within the power of one party to compel the other to produce writings in his possession to be used as evidence аgainst him. But if such evidence is required, the law has devised the means by which it can be obtained, or the right to use secondary evidence of its contents; and that is, by giving the opposite party or his attorney regular and reasonable notice to produce the writing at the trial. After such notice, and proof that the writing needed is in the possession, or under the control, or subject to the direction, of such opposite party, or either one of them, where more than one, the party giving such notice, having done all in his power to supply the best evidence, will be allowed to give evidence of an inferior kind, and may read and examine copy, or give parol evidence of the contents of the writing sought to be proved. But without such notice to produce the original writing shown to be in the possession or under the control of the opposite party, secondary evidence of its contents cannot, ordinarily, be given. Whenever the writing or document is shown to be in the possession or control of the opposite party, no evidence can be given of its contents without the preliminary notice to produce the original. 1 Greenl. Ev., Secs. 560, 561; Riggs v. Tayloe,
2. The second excеption was taken by the defendant to the ruling of the court in allowing the declarations of Lewis C. Main and William H. Main to be given in evidence, whereby they assured the plaintiff that the title to the Georgia land conveyed to the plаintiff was good. The defendant objected to the admissibility of these declarations, upon the ground that they were not made with authority
3. The third exception by the defendant was taken to the allоwance by the court of a letter to be read in evidence for a special purpose stated in the exception. The plaintiff, for the purpose of showing the imposition practiced upon him, in respеct to the Georgia land, and to show that there was no land in Tattnall County to answer the description and ownership of that professed to be conveyed to him, offered to read in evidence a letter from one Lеe, purporting to have been written from the office of the clerk of the Superior Court of Tattnall County, Georgia, dated November 16, 1888, stating that no such title or land appeared of record in that office, and that thе deed enclosed to him for record could not be recorded, under the law of the State. To the reading of this letter for any purpose the defendant objected; and the court, while refusing to allow the whole letter to be read, allowed such parts of it to be read as showed that the deed made to the plaintiff had been refused record by the clerk, and the defendant excepted.
We think the letter ought to have been excluded entirely. There was no proof of its genuineness, nor that it emanated from any such official source as it professed on its face. There was no verification of it whatever. The letter could not prove itself, and no statement it contained could be
It has been urged in argument that the defendant has recognized the genuineness of the letter. But we fail to find any evidence of that fact. It is true, the plaintiff says, as stated in the fourth bill of exception, that he called the attention of the defendant and William H. Main to the letter offered to be read in evidence, and demanded of them that the title to the Georgia land should be made good to him; and that both the defendant and William H. Main asserted their belief that the title was good, and offered to make him whole by the substitution of other property, which he declined to accept; but insisted uрon the payment to him of the sum of $3,000, the valuation placed upon the Georgia land in the trade; and that they put the plaintiff off from time to time, and evaded their promise to fix the matter up to his satisfaction. This certainly dоes not recognize the genuineness of the letter, or the truth of its statements. We think the ruling stated in the third exception was erroneous.
4. The ruling of the court as stated in the fifth exception was entirely correct.
5. The exceptions taken to the granting of the instruc
From what we have said, it follows that the judgment must be reversed, for the en’ors to which we have referred, and the cause be remanded for a new trial.
Judgment reversed, and cause remanded for a new trial.
Notes
The exception was to the overruling of defendant’s motion at the close of plaintiff’s case to instruct the jury to return a verdict in ■his favor. — Repobteb.