21 Mich. 364 | Mich. | 1870
Suit was brought by Mrs. Mason as administratrix of Charles Mason, deceased, among other things to recover the price or value of certain goods sold to Moulton by the deceased. Having introduced evidence tending to show the sale and delivery to Moulton of the property in question, and that Mason and Moulton examined and made an inventory of it, which was written in a book in Moulton’s handwriting, and taken into his possession, further proof was given on her behalf to the effect that Mason, three or four weeks before his death, called upon defendant and got from him the book containing the inventory to be copied; that he made or caused to be made for himself a copy of it, and that the book was returned to Moulton. Notice to •produce the original having been served upon Moulton, and he not producing it, an alleged copy was offered in evidence, and received against his objection.
When the defendant’s case was in progress, offers were made to prove by his testimony that the paper produced was not a copy of that inventory or of any inventory of
We are at a loss to discover any reason for the rejection of the two latter items. Evidence of payment is always admissible in defense of an action of asswnpsit, and. if money was paid to a third person for the deceased, further proof that the payment was authorized or ratified, or the money paid over to him, would put it on the same footing as if made to himself. ■ We cannot imagine on what ground it was held inadmissible.
The principal reason alleged for the exclusion of the other testimony was, that it came within the prohibition of the statute as relating to facts equally within the knowledge of defendant and the deceased. It was also insisted that by not producing the original of the inventory when demanded, he precluded himself from ■disputing the correctness of the copy.
The refusal, after reasonable notice, to produce a document in possession, which the adverse party is entitled to introduce in evidence, authorizes proof by secondary evidence. But it does not dispense with such proof as is attainable, and does not allow the tenor of the instrument to be made out by anything less than satisfactory evidence of all that is essential. There is no rule which prevents
It seems to have been rested on the supposed rule that a party who refuses when requested to produce a document in his possession, shall not afterwards be allowed to produce it to contradict the secondary proofs of his adversary. That, however, was not attempted here. There was no admission that the paper in question was in Moulton’s possession, and the questions put to him on the defense did not call for its production. They were put in such a way as to draw out parol evidence as readily as written.
But we do not perceive any very sound reason why the document itself should be excluded, if he had it. There are, indeed, some cases, which were cited on the argument, which seem to hold that a party declining to produce a document when called for under a proper notice, is estopped from producing it afterwards. There is no authority for such exclusion where it relates to his own case, even where not produced when called for by his adversary.—2 Phil. Ev. (Edward’s Ed.), 535. But this doctrine of estoppel has not found its way very generally into the text-books, and cannot be said to be among the old or established principles of the, law. It is not a rule calculated to further the eliciting of the truth. It is simply an attempt to punish one party by allowing his adversary to recover what does not belong to him, or to defend unjustly against a proper claim. Any rule, which rejects cértain proof for uncertain, deserves very little respect.
The remaining questions all relate to the propriety of excluding the testimony because equally within the knowledge of the decedent during his life. To see the bearing of the objection, it must be considered in connection with the facts as elicited. The plaintiff below, suing as administratrix upon a claim of the decedent against defendant, had not found it necessary to call defendant to prove anything. The whole case had been made out by witnesses. There was proof tending to show the sale of the property out of which the claim arose, — proof that the two parties made an inventory which was recorded in defendant’s handwriting,— proof that Mason obtained it of defendant some weeks before his death, and copied it or had it copied, and that he told defendant wh^ he wanted it, and proof identifying that copy. It appears from this showing that the facts material to be proved, while within the knowledge of Mason and defendant, were also within -the knowledge of others, and provable by them. It does not appear that the copying of the inventory took place in the presence of Mason and defendant, or of either of them. The whole controversy, as it appears on the record, is concerning the correctness of the copying of a written document.
The rulings were erroneous, and the judgment should be reversed with costs, and a new trial granted.