If a party intend to use a written instrument in evidence, he
must produce the original, if in his possession. But if it is in
the possession of the other party, who refuses to produce it after
notice, or if the original is lost or destroyed, secondary evidence
(being the best which the nature of the case allows) will be
admitted.
The party in such case may read a counterpart, or, if there is
no counterpart, an examined copy, or, if no such copy, may give
parol evidence of the contents.
Where a writing has been voluntarily destroyed for fraudulent
purposes or to create an excuse for its nonproduction, secondary
evidence of its contents is not admissible. But where the
destruction or loss (although voluntary) happens through mistake or
accident, such evidence will be admitted.
Page 22 U. S. 484
MR. JUSTICE TODD delivered the opinion of the Court.
This was an action on the case brought by the plaintiff against
the defendant in the Circuit Court of the District of Columbia upon
a contract in writing entered into between the plaintiff and
defendant for the sale of bank stock of the Central Bank of
Georgetown. At the time that this contract was entered into, each
party had a counterpart of the contract, and the plaintiff alleging
the loss of his, he gave notice to the defendant to produce, upon
the trial, the one which he, the defendant, had; but the defendant
declined producing it, stating that he had lost his also. In
consequence of these losses, the plaintiff, upon the trial of the
cause, offered to prove, by a person who was a witness to the
contract and had subscribed it as such, the contents of the
contract, and to entitle himself to give this testimony, made the
following affidavit:
"The plaintiff in this cause makes oath, in relation to the
memorandum
Page 22 U. S. 485
of agreement between the defendant and himself, relative to the
stock in the declaration mentioned, that his impression is that he
tore up the same after the transfer of the stock, believing that
the statements upon which the contract had been made were correct
and that he would have no further use for the paper. He is not
certain that he did tear it up, and does not recollect doing so,
but such is his impression. If he did not tear it up, it has become
lost or mislaid, and that he has searched for it among his papers
repeatedly and cannot find it."
The defendant objected to this testimony and insisted that no
evidence ought to be given of the contents of the said contract.
The court sustained the objection, whereupon a verdict and judgment
was given for the defendant. The plaintiff filed a bill of
exceptions to the opinion of the court, excluding the evidence
aforesaid from going to the jury, and the cause is brought up to
this Court by a writ of error.
The only question to be decided by this Court is whether the
circuit court erred in rejecting the said evidence.
Whether the plaintiff in the cause was a competent witness to
prove the loss or destruction of the written agreement referred to
in the bill of exceptions need not be inquired into, as it was not
objected to in the court below and the question was waived by the
defendant's counsel in this Court.
The admissibility of evidence of the loss of a deed or other
written instrument is addressed to the court, and not to the
jury.
Page 22 U. S. 486
The general rule of evidence is if a party intend to use a deed
or any other instrument in evidence, he ought to produce the
original if he has it in his possession, but if the instrument is
in the possession of the other party, who refuses to produce it
after a reasonable notice, or if the original is lost or destroyed,
secondary evidence which is the best that the nature of the case
allows will in that case be admitted. Phillips on Evid. 399. The
party, after proving any of those circumstances to account for the
absence of the original, may read a counterpart, or, if there is no
counterpart, an examined copy, or, if there should not be an
examined copy, he may give parol evidence of the contents.
It is contended by the defendant's counsel that the affidavit is
defective, not being sufficiently certain or positive as to the
loss of the original writing. The affiant only states his
impression that he tore it up, and if he did not tear it up, it has
become lost or mislaid; that this is in the alternative, and not
certain or positive. We do not concur in this reasoning. An
impression is an image fixed in the min; it is belief, and
believing the paper in question was destroyed has been deemed
sufficient to let in the secondary evidence. Phillips on Evid. 399;
7 East 66; 8 East 284. The alternative alluded to is, "if he did
not tear it up, it has become lost or mislaid." Now if he tore it
up, it was destroyed; if it was not destroyed, it was lost or
mislaid; in either event, it was not in the power or possession of
the affiant, which, we think, is sufficiently
Page 22 U. S. 487
certain and positive to let in the secondary evidence.
It is further contended that it appears from the plaintiff's own
showing the destruction or loss of the writing was voluntary and by
his default, in which case he ought not to be permitted to prove
its contents. It will be admitted that where a writing has been
voluntarily destroyed with an intent to produce a wrong or injury
to the opposite party or for fraudulent purposes, or to create an
excuse for its nonproduction, in such cases the secondary proof
ought not to be received; but in cases where the destruction or
loss (although voluntary) happens through mistake or accident, the
party cannot be charged with default. In this case, the affiant
states that if he tore up the paper, it was from a belief that the
statements upon which the contract had been made were correct, and
that he would have no further use for the paper. In this he was
mistaken. If a party should receive the amount of a promissory note
in bills, and destroy the note, and it was presently discovered
that the bills were forgeries, can it be said that the voluntary
destruction of the note would prevent the introduction of evidence
to prove the contents thereof, or if a party should destroy one
paper, believing it to be a different one, will this deprive him of
his rights growing out of the destroyed paper? We think not. Cases
of voluntary destruction of papers arising from mistake as well as
from accident might be multiplied
ad infinitum. In this
case, the evidence offered was
Page 22 U. S. 488
that of the subscribing witness to the writing; it was the best
evidence that the nature of the case admitted which was in the
possession or power of the party. This Court is therefore of
opinion the circuit court erred in refusing to let the said
evidence go to the jury.
It was further contended by the defendant's counsel that the
declaration is radically defective, stating no cause of action
whatever.
If there had been a single count only in the declaration on the
written contract, it might be necessary to go into an examination
of this point, but as there is a count for money had and received
and money paid and advanced which, if the evidence had been
permitted to go to the jury and they had found their verdict on
this count, it would have been clearly good, we deem it immaterial
to decide it.
Judgment reversed, and a venire facias de novo
awarded.