5 Day 298 | Conn. | 1812
This motion presents two subjects to our consideration : the rejection of the evidence, and the correctness of the charge.
It is a general rule of evidence, that the contents of a written instrument, can never be proved by parol, until the paper is proved to be lost; or until it shall be satisfactorily shewn to the court, that it cannot, by due diligence, be obtained. In this case, it is not pretended, that any attempt has been made to procure the document. Reliance is placed on these circumstances alone, that it is out of the jurisdiction of the court, and in the hands of the assignees. Neither of these causes appears to me to be sufficient. There is nothing in the nature of the instrument, or of the claim, which could protect the assignees, if here, in withholding it; and it would be an alarming doctrine, to admit, as a thing of course, proof of the contents of every paper which may be beyond the jurisdiction of the court. Such papers can generally be easily obtained, and proof of their contents is never admitted, but from necessity. This necessity is not to be presumed, merely from the fact, that the paper is out of the jurisdiction of the court. There must be further proof; and the court must be satisfied that the paper cannot be produced. I am, therefore, of opinion, that the court, with great propriety, rejected parol proof of its contents.
But however this may be, the rejection of the evidence cannot be cause for a new trial, if the charge to .the jury was correct; for, if admitted, the result would still be the same.
The transaction itself, and the nature of the contract, as agreed, shew', that the parties did not consider the defendants indebted to E. & A, Townsend, at the time they gave their note to Barlsch. Had they so considered it, they would, probably, have taken, at the same time, a note of equal amount from the-defendants to themselves. It-was in fact a mere loan of the note of E. & A. Townsend, for the accommodation of the defendants; a transaction not unusual in the course of mercantile dealings, and would have implied an indemnity, if no agreement had been expressed. But in this instance, there was an express undertaking, on the part of (he defendants, to furnish funds in season to meet the payment, and to indemnify. This, so far from implying, that payment was to be made to them at all events, excludes the idea of indebtedness, and shews, that E. & A. Townsend relied on the special contract to furnish funds, and save them harmless. E. & A. Townsend could not have maintained a suit against due defendants, immediately after executing their note to Barlseh; nor could they have done so, at the commencement of this suit. The liability of the defendants depended on future events. If the defendants had paid the note to Barlseh, instead of remitting funds to E. & A. Townsend, this, surely, would have cut off all claim of theirs against
Whether the defendants could retain this money, upon the equitable claim of Elnathan Atwater; or because they would be compelled at law or in equity, to pay it to Bartsch, it seems unnecessary to decide, as 1 am clearly of opinion, that from the facts conceded, the defendants were not indebted to E. & A. Townsend, at the time the copies were left in service with them, and that a new trial ought not to be granted.
New trial not to be granted.