Union Banking Co. v. Gtttings

Alvby, J., delivered the opinion of the Court. It is hardly' possible to suppose that the evidence admitted by the ruling of the Court as stated, in the first hill of exception could have prejudiced the defendant; and if this were the only question in the case we should not reverse the judgment. We think, however, that the evidence should have been excluded. When an agent is ¹⁹³ acting within the scope of his authority, his declarations accompanying his acts are admissible, as they are a part of the res gestee, and may qualify or explain the acts done by him.

But in this case, the facts that Savin was the cashier of the defendant, and had negotiated for the renting of the rooms from the plaintiff, were not evidence of authority to bind the defendant by the remarks made to the agent of the plaintiff, as to the purpose for which the particular room was wanted, or the terms upon which the previous renting had been made. City Bank of Balto. vs. Bateman, I H. & J., 104. The declarations at most appear to have been of a purely casual nature, and.were without any special signification whatever. The second exception presents a question of more importance.

There was a written lease prepared by the plaintiff, or by his direction, and sent to Savin, the cashier of the defendant, to be signed, but which was never signed. This paper,, it seems, has been lost or mislaid. At a former trial between these same parties, the plaintiff gave the defendant notice to produce the paper, and in default of production, gave secondary evidence of its contents. And at the trial of this cause the plaintiff, in his testimony, referred to the paper, and described its nature and character, and his counsel then called upon the counsel of the defendant to produce the paper, under notice previously given.

The reply to this request was that the paper was not in their possession. The plaintiff then proceeded to give evidence by his agent, who took the paper to Savin to be signed, that he had not the paper, hut that he left it with Savin, the cashier of the defendant. After this evidence on the part of the plaintiff, the defendant proved by Savin that the paper was handed to him by the agent of the plaintiff; — that he declined to sign it, and thinks he gave it back to the agent of the plaintiff; and also proved, by the same witness, that he had searched for the paper and could not find it, and that, ¹⁹⁴ if it was not given back to the plaintiff’s agent, it was lost or mislaid, so that it could not be produced. In addition to this, the defendant then proved, by both the plaintiff and his counsel, that they had not the paper, and did not know where it was.

Whereupon the defendant offered to prove hy Savin the contents of the paper, but the plaintiff objected to such evidence, on the ground that no notice had been given to him or his counsel to produce the paper; and the Court sustained the objection and excluded the evidence. In this ruling we think there was error. There was really no use in requiring notice to be given the plaintiff to produce the paper. Having himself, on a previous trial in regard to the same subject-matter, given evidence of the contents of the paper, after notice to the defendant to produce it, and in this case also given a like notice to the defendant to produce the paper, he is estopped from saying that he could have produced it if notified to do so.

He had been allowed to act upon his professed inability to produce the paper, and upon his assurance to the Court that it was not in his possession or control, and it would now be contrary to good faith to allow him to insist that he could have produced the paper upon notice hy the defendant. Moreover, both he and his attorney had sworn positively in this cause that they had not the paper, and did not know where it was. It is well settled that notice will not he required where the adverse party or his attorney has admitted the loss or destruction of the document, for in such case the notice' would he nugatory ; 1 Taylor Ev., 449, sec. 425 ; Rex vs. Haworth, 4 C. & P., 254; Foster vs. Pointer, 9 C. & P., 718; How vs. Hall, 14 East, 276; and for the same reason notice is unnecessary where the party or his attorney admits, or, as in this case, swears, that the document is not in the possession or control of either of them, and therefore cannot be produced. And we think the evidence ¹⁹⁵ of the loss of the paper was, under the circumstances of the case, sufficient to let in the secondary evidence of its contents.

The question, whether the loss of the instrument was sufficiently proved, to admit secondary evidence of its contents, was for the Court to determine, and not the jury. The object of the preliminary proof was merely to establish a reasonable presumption of the loss of the paper; and if the paper was supposed to be of little value, a less degree of diligence, in searching for it, was required, than if it had been regarded as of importance. 1 Greenl. Ev., sec. 558 ; Spalding vs. Bank of Susquehanna County, 9 Barr, 28 ; Taunton Bank vs. Richardson, 5 Pick., 436 , 443. The degree of diligence exacted in this respect depends, in a great measure, on the importance of the lost document.

Here, the paper was not signed, and there was no reason for preserving it with the care that would have been proper if it had been duly