Hanson v. Kelley , 38 Me. 456 ( 1853 )

Tenney, J.

— -The note purports upon its face to have been signed by the defendant, acting through W. B. Kelley. The defendant denied the authority of W. B. Kelley to sign the note in his behalf, and introduced him as a witness. He testified, that he had no authority to sign the note in suit, or any note. On the witness being interrogated by the defendant, as to the reason of his signing the note, as agent, and touching the conversation at the time, and under what circumstances he was induced to sign, objections were interposed by the plaintiff; and the witness was not allowed to answer the inquiries made.

To entitle the plaintiff to recover in the action, it was necessary to show in some mode, that W. B. Kelley had the right to affix the defendant’s name to the note, and make him liable. Without some proof, no presumption of such authority would arise. It might be desirable, that the witness should be exculpated from any design to do wrong, in using the name of the defendant improperly; but after having in the fullest manner denied the right to sign the note as he did, it is not perceived, that a detail of the circumstances would make that denial in any respect stronger than it was when first expressed. The defendant could not have been injured by the ruling of the Court.

The exceptions taken to the exclusion of the secondary evidence of the contents of a paper referred to, in the trial has no legal foundation. A witness testified, that he was the •defendant’s clerk, and had the oversight of his papers and of the filing of them; that he had made thorough search with the defendant among the papers of the latter, for the purpose of finding the paper, but was unsuccessful, and he believed it to be lost.

“ It seems in general, that the party is expected to show, that he 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 naturally suggest, and which were accessible to him,” and “ the affidavit of a party is admissible to show the loss, after other evidence, that it once existed, is introduced.” Greenl. Ev. § 558, The evidence produced, that the paper was lost, was not inconsistent with the hypothesis, that it was in existence, and that the defendant had a knowledge of the place, where it could be found. Notwithstanding the oversight of the papeps of the defendant was with the witness, it does not appear, that their custody was not with the owner, and if he had made thorough search and was unable to find it, he could have made affidavit of that fact.

Exceptions overruled.

Shepley, C. J., and Rice and Hathaway, J. J., concurred.