Barry v. Ryan , 70 Mass. 523 ( 1855 )

Shaw, C. J.

It appears by the bill of exceptions, that the plaintiff began his case, by offering an instrument, purporting to be a contract of demise, not under seal, to which there appeared to be an attesting witness, without producing him, or proof of any excuse for his absence. If the instrument was necessary to the plaintiff’s case, before he could read it, or use it for any purpose, he must prove its execution. The person whose signature appeared to it, as attorney of the supposed les sors, could not affect the rights of the defendants, who objected to it, by way of admission or confession, for he never represented, or was entrusted by the defendants for any purpose. His handwriting was secondary evidence only, and could not be proved until the plaintiff had proved that the testimony of the attesting witness could not be obtained. The. attorney therefore stood in the same position, as any other person, not a subscribing witness, who might have happened to be present, at the execution of the instrument. The evidence we think was incompetent, and rightly rejected. 1 Greenl. Ev. §§ 569, 574.

The other point seems equally plain. The plaintiff having offered and produced a written instrument, as a contract under which the defendant held, containing of course the terms, limitations and conditions of his holding, cannot, merely because he fails in his proof of its execution, deny the existence of such an instrument, and rely on paroi proof of possession and the payment of rent; for the law implies no contract where the parties have made an express one; and the party, after such offer of an express contract and failure to prove it, is estopped from denying the existence of such a written contract.

Exceptions overruled.