Glenn v. Rogers , 3 Md. 312 ( 1852 )

Tuck, J.,

delivered the opinion of this court.

We are of opinion that the defendant did not lay a proper foundation for the introduction of parol proof of the contents of the letter mentioned in. the first bill of exceptions. Before secondary evidence can be received the.court should be satisfied that a reasonable opportunity has been afforded the opposite party to produce the original. The notice was served when the jury was about being drawn, and when the plaintiff could not have complied, in all probability, unless the paper was in court, which does not appear to have been the fact. Whether, if the paper had been in court, the notice would have been sufficient in point of time, we need not determine. “As to the time and place of the service, no precise rule can be laid down,- except that it must be such as to enable the party, under the known circumstances of the case, to comply with the call.”' 1 Greenl. Ev., sec. 562. 8 Gill and Johns., 208, Divers vs. Fulton.

We also think, that the evidence offered of the loss of the letter, was insufficient. The law requires a bona fide and diligent search for the paper itself, in the place where it is most likely to be found. 1 Greenl. Ev., sec. 558. 3 Cowen's Philip’s Ev., 1231. 3 Halsted, 275, Fox vs. Lambson. The degree of diligence will depend on the character and value of the instrument. But it must appear that the party relying upon the secondary proof has, in good faith, exhausted, in a reasonable degree, all- the sources of information and means of discovery which the nature of the case would suggest, and which were accessible to him. We cannot say that this has been done in the present case. If the defendant had served timely notice on the plaintiff to produce the letter, the objection would have been obviated. Having omitted this, he relied on the evidence of the plaintiff, who consented to be sworn for this purpose, the substance of whose statement is, that he never looked for this' particular paper among those of his intestate, though he had made a general examination among them for such as were of value or importance, that he had found no such letter, and that it might possibly then be among them.If this paper were necessary to maintain the plaintiff’s action it is impossible to suppose that such an examination would let in parol proof of its contents. Why should it be deemed sufficient when offered by the defendant to defeat the claim? This case is not distinguishable in principle from State vs. Wayman, 2 G. and Johns., 283, and Mulliken vs. Boyce, 1 Gill, 60, in the former of which the proof of loss was said to be inconclusive and unsatisfactory, and left the mind in doubt whether by a further search the record books sought for might not have been found.

It is said, however, that the evidence of the witness was admissible, although the paper was not shown to be lost, because it was offered to prove an independent fact which need not be established by written evidence. Facts aré sometimes proved by parol of which there is evidence in writing. The authorities referred to on the part of the appellant furnish examples. 2 Binney, 245. 3 Bibb, 520. 1 Halsted, 419. 7 Cowen, 335. And others are given in 1 Greenlf. on Ev. sec. 90. The rule applicable to cases like the one before us is thus stated: ccIf a written communication be accompanied by a verbal one, to the same effect, the latter may be received as independent evidence, though not to prove the contents of the writing, nor as a substitute for it.” We do not understand that this witness carried a verbal message to the plaintiff’s intestate of the same import with the written communication. He spoke of the contents of the letter. The reply given by Rogers, standing alone, means nothing, though it would have been evidence in connection with the letter if in the cause, or with the verbal message, if one had been sent with the letter. It could only have received character and force from proof of the matter to which it related, to wit, the contents of the letter. The evidence offered being merely a substitute for the letter, and the reply by itself, having no relation to the subject matter in controversy, both were properly rejected.

The second exception was taken to two instructions granted at the instance of the plaintiff. There is no material difference between them, except that the last refers to the supposed guarantee by the plaintiff’s intestate. This was a collateral undertaking, and should have been-in writing. Elder vs. Warfield, 7 H. & J., 396. Conolly vs. Kettlewell, 1 Gill, 260. The argument on the part of the appellant, as to performance cannot, in the present action, entitle him to rely upon the parol agreement.

But we think that the second prayer was erroneously grant1*’ ed because it assumes that the agreement was not in writing. For this reason, however, the record will not be remanded, for the defendant could not have been prejudiced by this error on the part of the court below. 3 Gill and Johns., 472. 8 Do., 111. The plaintiff had offered uncontroverted evidence of his claim, and even if the guarantee had been in writing, it would have been no answer to his cause of action, unless accompanied by proof of the condition and actual value of the mare at the time of the sale.

The witnesses stated that the defendant complained that she did not turn out well, and said he would hold Barber liable; but there was nothing to show the extent of damage by reason of defects in the mare, and the jury could have made no allowance on that account, except upon conjecture. If the judgment were reversed, and a new- trial had, such proof would not avail the defendant, because the agreement, under which alone it could be offered, is not in writing. 1 Gill, 260.

Judgment affirmed.