Stone v. Sanborn , 104 Mass. 319 ( 1870 )

Gray, J.

The contract of marriage, on which the plaintiff' relied to support her action, and to which she testified, was oral. The letters between the parties which were admitted in evidence were not offered by the plaintiff as themselves constituting the contract, but as evidence of the defendant’s admissions that it had been made, and of a breach by his refusal to perform it. The only objections taken at the trial to the admissibility of this evidence were, that the plaintiff had voluntarily destroyed part of the correspondence, or, if she had not destroyed it, refused to produce the whole, and should not be permitted to introduce portions of it only; and particularly that she could not put in a letter replying to one which was destroyed or not produced. We are of opinion that neither of the objections can be maintained.

The plaintiff might give in evidence against the defendant any letters of his, containing admissions material to the questions in issue, without putting in the whole correspondence between them. If letters which she introduced showed that they were written in reply to other letters, she might doubtless give in evidence those letters too, as tending to explain the replies. Trischet v. Hamilton Insurance Co. 14 Gray, 456. She was not however bound to do so, but might leave it to the defendant, upon cross-examination or otherwise, to offer any competent evidence of them or their contents, if he wished. If the ruling of Chief Baron Pollock in Watson v. Moore, 1 C. & K. 626, cited for the defendant, that the party offering the reply in evidence should put in both the letters or neither, was anything more than an exercise of discretion as to the order of proof, it is more than counterbalanced by the opinions of Lord Kenyon in the earlier case of Barrymore v. Taylor, 1 Esp. 326, and of Baron Parke in the later one of De Medina v. Owen, 3 C. & K. 72. In Crary v. Pollard, 14 Allen, 284, the reply was held admissible as evidence of notice to the party to whom it was addressed, without producing the letter to which it referred ; and the question whether it was admissible for any other purpose was not considered. When a particular communication which refers to a previous one is not introduced as containing the terms ctf a contract, we see no more reason for obliging the party offering it to put in the previous communication also, when the com munications are written, than when they are oral. In either case, whether the communications are by successive letters or by distinct conversations, the party introducing the second in evidence may, if he pleases, introduce the first also; and if he does not, the other party may. The actual custody of the papers does not affect the question which party shall introduce them, but only the steps to be taken to compel their production.

A party who wilfully destroys a document cannot indeed be permitted to testify to its contents without first introducing evidence to rebut the inference of fraud arising from his act. Joannes v. Bennett, 5 Allen, 169. Oriental Bank v. Haskins, 3 Met. 336, 337. But it is unnecessary to consider whether the plaintiff’s testimony as to the circumstances under which she destroyed some of the defendant’s letters was sufficient to rebut any inference of fraud in the present case; for she offered no evidence of the contents of the letters destroyed; and their destruction could not estop her to give in evidence any existing letters in themselves competent.

The result, as applied to the plaintiff’s letter of February 3, 1865, to the admissibility of which the objection was most strongly urged, is this: The defendant’s reply of February 4, referring to this letter of February 3, was in evidence; and this was therefore competent also. The introduction by the plaintiff of this letter of February 3 warranted, but did not oblige, her to give in evidence, if she would and could, the previous letter of the defendant to which it in turn referred. She did not offer or produce that previous letter, and the defendant testified to its contents. He has therefore no ground of exception to the course of proof at the trial.

There was no error in refusing the instructions requested. The plaintiff’s letter to the defendant’s sister in December 1865 did not, as was contended in the first of these instructions, put an end to the contract, but treated it as terminated by him long before. The second instruction was inapplicable to the case, because it was assumed that the engagement continued to the date of this letter; whereas both parties had contended that it had been terminated in the February preceding, and differed only upon the point whether it had been so terminated with her consent. The third was covered by the instructions given, which permitted the jury to find that the contract was originally conditional, or was afterwards made so. The fourth instruction presented a partial view of the case, and was calculated to prejudice the plaintiff with the jury. The submission to the jury of the plaintiff’s failure to produce all the letters and destruction of some of them, as circumstances to be considered by them “ in determining the weight and effect to be given to the letters produced,” necessarily involved a consideration of the probable contents of the missing letters. All the instructions given appear to us to have been clear and just, well adapted to the case, and open to no legal exception.

Exceptions overruled.