Atwell v. Miller

Mason, J., delivered the opinion of this court. This is an action of assumpsit, instituted by the appellees ¹⁶ against the appellant, to recover the balance upon certain sales alleged to have been made by the formerj as factors, on account of the latter, the controversy involving the sum of one hundred and twenty-two dollars. The first question which is raised in the record, relates to so much of the evidence of Goodwin, which seeks to introduce the blotter of the store, containing the original entry of one of the plaintiffs, at the time the alleged transaction with the defendant took place. This evidence was objected to by the defendant, “as proof of sale made.” But the “plaintiff stated that they did not offer the entry for any such purpose, but onlA) to be connected with other proof thereafter to be offered, of a bill of the goods charged having been asked for by’ defendant and sent him” The record further shows, that for this latter purpose alone the evidence was admitted.

It was competent, we think, for the witness to refer to the blotter as an item of evidence in the cause, to show that he had sent a bill copied therefrom to the defendant, and to' ascertain by referring thereto,- of what the bill consisted. This testimony however would only be admissible' for the' purpose of showing what articles were embraced in the bill of parcels, after the proper foundation had been laid for the introduction of the secondary evidence, of the contents of the said bill of parcels; and that foundation would have been a notice duly served upon the defendant to produce the original paper, and which notice had been disregarded. In this instance', as the point is presented by the record, we think the book was properly admitted in evidence for the specific purpose for which it was offered. The ass'urance that this evidence would be followed ' up by proof of other circumstances and facts material and competent, with which it would have an important connection, rendered its admissioii propeiv If however it should turn out that this assurance was not fulfilled, it would be the duty of the court, in a subsequent stage of the trial, upon an application by counsel, to direct the jury to disregard or reject it.

The entries in the blotter were made, it appears, by one of the plaintiffs ¹⁷ himself, and therefore were clearly not evidence, per se in their favor. They could only have become so, as we have shown, by being connected collaterally with other facts and circumstances. In this case we think, as wé shall presently show, the plaintiffs did not make good their plédge, inasmuch as they did not show that a legal notice had been given in order to lay the foundation for the introduction of the secondary evidence. This leads us to the consideration of the second question presented by the record.

In the progress of the trial, with the view óf establishing the original contract óf sale, out of which the present controversy arises, the plaintiffs offered to prove aliunde, the contents of a written paper, being the bill of parcels of the goods. To authorise the introduction of this evidence, the plaintiffs, while the trial was in progress, served a notice upon the defendant in court, to produce the original paper, which the defendants’ counsel, after having examined his papers declined to produce, and hence the attempt of the plaintiffs to give secondary evidence of its contents. Was this notice sufficient under the circumstances, to warrant the introduction of the secondary evidence, is the point to be determined. Notice given at the bar, during the progress of the trial to produce a paper is not sufficient, unless it appears satisfactorily, that the paper is in court at the time, and in possession of the party upon whom the demand is made, or if elsewhere, that it would be of easy access.

In this case it does not affirmatively and sufficiently appear in the record, that the paper was in coutt and in the possession of the defendants, or of easy access when the demand was made. It is true he declined to produce it, but it might as well have been that he so declined, from inability to produce it, as from an unwillingness to do so. The secondary evidence of this paper therefore was improperly admitted, and for that reason we reverse the ruling of the court upon this point. From what we have said it follows, that the notice to produce the other paper referred to in the record, and