Tayloe v. Riggs - 26 U.S. 591 (1828)
U.S. Supreme Court
Tayloe v. Riggs, 26 U.S. 1 Pet. 591 591 (1828)
Tayloe v. Riggs
26 U.S. (1 Pet.) 591
The rule of law is that the best evidence must be given of which the nature of the thing is capable -- that is, that no evidence shall be received, which presupposes greater evidence behind in the party's possession or power. The withholding of that better evidence raises a presumption that if produced, it might not operate in favor of the party who is called upon for it. For this reason, a party who is in possession of an original paper is not permitted to give a copy in evidence or to prove its contents.
The affidavit of a party to the cause of the loss or destruction of an original paper offered in order to introduce secondary evidence of the contents of that paper is proper. If such affidavit could not be received of the loss of a written contract the contents of which are well known to others or a copy of which can be proved, a party might be completely deprived of his rights, at least in a court of law.
It is a sound general rule that a party cannot be a witness in his own cause, but many collateral questions arise in the progress of a cause, to which the rule does not apply. Questions which do not involve the matter in controversy, but matter which is auxiliary to the trial and which facilitates the preparation for it often depends on the oath of the party. An affidavit of the materiality of a witness for the purpose of obtaining a continuance, or a commission to take depositions, or an affidavit of his inability to attend is usually made by the party and received without objection. On incidental questions which do not affect the issue to be tried by the jury, the affidavit of the party is received.
That testimony which establishes the loss of a paper is addressed to the court, and does not relate to the contents of the paper. It is a fact which may be important as letting the party in to prove the justice of the cause, but does not itself prove anything in the cause.
The action being upon a written contract said to have been lost or destroyed, and not for deceit or imposition, the plaintiff's right to recover is measured principally by the contract, and the secondary evidence must prove it as laid in the declaration. The conversation which preceded the agreement forms no part of it, nor are the propositions or representations which were made at the time but not introduced into the written contract to be taken into view in construing the instrument itself. Had the written paper stated to be lost or mislaid been produced, neither party could have been permitted to show the party's inducements to make it or, to substitute his understanding for the agreement itself. If he was drawn into it by misrepresentation, that circumstance might furnish him with a different action, but cannot affect this.
When a written contract is to be proved not by itself but by parol testimony, no vague uncertain recollection concerning its stipulations ought to supply the place of the written instrument itself. The substance of the agreement ought to be proved satisfactorily, and if that cannot be done, the party is in the condition of every other suitor in court who makes a claim which he cannot support.
When parties reduce their contracts to writing, the obligations and rights of each are described by the instrument itself. The safety which is expected from them would be much injured, if they could be established upon
uncertain and vague impressions made by a conversation antecedent to the reduction of the agreement.
This suit was instituted by the defendant in error in the circuit court for the County of Washington for the recovery of a sum paid by him to the plaintiff in error on a purchase of 7,462 shares of stock in the Central Bank of Georgetown and Washington, the plaintiff in the suit alleging that he had paid to the extent of three percentum on the said stock upon a contract that if the Bank should not declare a dividend which would repay him the said three percent, that the same should be refunded to him. The contract had been reduced to writing and had afterwards been lost, mislaid, or destroyed by the plaintiff.
The declaration contained three counts:
1. Stating a conversation between the plaintiff and the defendant concerning the sale of the stock held by the defendant in the bank, and that in the conversation it was agreed that the defendant should sell to the plaintiff the shares held by him at par; that the defendant represented that a dividend would be made on the same of four percent, and stated that the plaintiff should advance and pay to the defendant so much of the dividend as had then been earned by the bank, and that confiding in the said representations, and believing the dividend would be made, he, the plaintiff, agreed to advance the supposed earnings of the stock, which according to a calculation amounted to three percent, and a memorandum in writing of the agreement was then made; the stock was then transferred to the plaintiff, and he paid the defendant the par price of the same, and advanced or paid to him the sum of $1,902, being the supposed earnings of the bank at the time of the contract -- that at the time of the contract, the bank had made no profits on which a dividend could be declared, nor did the bank, on the regular day of declaring the dividend, make any dividend upon the said stock, by means of which the defendant became bound to refund the sum so advanced for the supposed earnings of the bank.
2. Count indebitatus assumpsit for money had and received.
3. Count indebitatus assumpsit, for money laid out, &c.
On the trial of the cause, William Hebb was offered and examined, subject to exceptions to his testimony as a witness on the part of the defendant in error, in relation to the contract between the parties. This evidence is fully stated in the opinion of the Court.
The defendant below requested of the court certain instructions which were refused, and a bill of exceptions to this refusal was allowed by the court. A verdict and judgment having
been given for the plaintiff below, the case was brought by writ of error from this Court.