Hay v. American Fire Clay Co. , 179 Mo. App. 567 ( 1913 )

NORTONI, J.

(after stating the facts). — It appears the unsigned writing introduced in evidence was typewritten and that used on the trial was a carbon copy. The witness Crawford testified that what is known both as an original and a carbon copy were made at the same time, and the carbon copy was furnished to plaintiff by him. Plaintiff approved it as setting forth the terms of the agreement, and it seems retained this carbon copy. The original, made at the same time as the carbon copy, was neither produced nor called for, and the witness did not know its whereabouts. Because of this alone, it is urged the court erred in receiving the carbon copy in evidence, but we are not so persuaded. Such carbon copies are made by the same imprint as the original and there is essentially indited thereon the identical matter. Such being true, if the original copy accurately reveals the statements therein, the carbon copy does likewise. Therefore, carbon copies so made are regarded rather as originals and, as such, primary evidence under the rule of evidence here invoked, for they essentially partake of this quality in the process of inditing their contents. It is clear the writing was not objectionable as secondary evidence because it was a copy. [See Wright v. Chicago, B. & Q. R. Co., 118 Mo. App. 392, 94 S. W. 555; Bond v. Sandford, 134 Mo. App. 477, 114 S. W. 570.]

But though such be true, it is argued the writing was inadmissible as evidence because it was not signed, and, moreover, because it was not ma.de contemporaneously with the agreement. However, it was not introduced as the contract between the parties, in the usual sense of that term, hut rather as an admission on the part of defendant. There can be no doubt that it was inadmissible as a written contract, for it was not signed by either defendant or plaintiff. But the testimony is, that it was drawn up by Crawford, the secretary of defendant company, at the direction of Dr. Cale, its president, and in accord with the pencil memorandum made by Crawford, the secretary, at the time the oral agreement was entered into between plaintiff and defendant and under their joint supervision. It is true the pencil memorandum was not produced, and Crawford, the secretary of defendant company at the time this paper was reduced to typewriting, testifies that the typewriting was actually doné some three or four -days after the agreement between the, parties was entered into. Because of this it is urged the writing was inadmissible, for that it was not indited contemporane•onsly with the oral agreement. If the writing revealed .a memorandum made by one party as if ex parte, without the knowledge of the other, the argument would prevail, in view of the further fact that the witness testified concerning the agreement in full without need of the writing to refresh his memory.

The cases relied upon by defendant go to the affect — first, that for a writing to be competent in evidence when made by one party concerning a transaction without the knowledge of the other, as by setting it down in a book, it must appear to have been contemporaneously made. Such is the rule of Wells v. Hobson, 91 Mo. App. 379. Second, that a writing made without the knowledge of the adverse party, and, therefore, ex parte, contemporaneously with the transacfion in suit is not competent to be received in evidence for the purpose of consulting and considering its confents, except it be used to refresh the memory of the witness and as auxiliary to his testimony. Therefore, when it appears the witness distinctly remembers the transaction and can speak without the aid of such writing, the writing should not be received. Such are the cases of Vicksburg, etc. R. Co. v. O’Brien, 119 U. S. 99; Nat. Ulster County Bank v. Madden, 114 N. Y. 280; Meacham v. Pell, 51 Barb. (N. Y.) 65; McKelvey on Evidence, Sec. 233.

The principle thus-invoked seems to relate to such memorandums and writings as are made by one •party without the knowledge of, and separate and ,-apart from, the other. This being true, it is unavailing .’here, for in the instant case the writing was made, according to the evidence of Crawford, the secretary •of the company, by him on behalf of defendant and at the instance and direction of Dr. Cale, its president. .Much .of the argument proceeds, we believe, on the conception that Dr. Cale is the real defendant and that Crawford, who wrote the memorandum and testified to it, is an utter stranger to the transaction. Something is said in the brief to the effect that Crawford is not a party to the suit and, therefore, it was not within his province to make an admission. It is true that Crawford is not a party to the suit and it is true, too, that this suit does not proceed against Dr. Cale, but rather against the defendant corporation of which he is president and of which Crawford was a director and the secretary at the time the writing was made. Obviously these two together. could make an admission against the defendant corporation, of which they were officers. Crawford says he wrote the paper at the direction of Dr. Cale, with a view of embodying the terms of the contract between plaintiff and defendant, from the pencil memorandum he made at the time of the verbal agreement, and submitted it within three or four days to both plaintiff and Dr. Cale, the president of defendant company. His evidence, too, is that when the writing was submitted to Dr. Cale, he tacitly approved it by suggesting that Crawford should put it in the form of a letter and transmit it to plaintiff for his signature. This, it seems, was not immediately done, and plaintiff continued to retain the copy furnished to him by Crawford, awaiting the signature of defendant through its president, Dr. Cale. In the meantime, Dr. Cale went away on his vacation and wrote a letter to Chapman, his private secretary, instructing him to notify plaintiff that he had abandoned the whole project. Though it be this writing was actually put on paper three or four days after the agreement, it was competent in evidence as an admission against defendant corporation, tending to prove the arrangement between the parties if Dr. Cale saw and approved it as stating the terms of the agreement. Obviously an admission of the adverse party is competent to be received in evidence without regard to the fact that it was not made contemporaneously with the agreement constituting the subject-matter of the suit. [See Wigmore on Evidence, Sec. 1048, et seq.]

The mere fact that Dr. Cale denied he directed Crawford to reduce the alleged contract to writing and denied, too, that it was ever submitted to him for approval and that he ever approved it is not sufficient to render the paper incompetent in evidence as an 'admission against defendant company, for the evidence of Crawford is directly to the contrary — that is, that he, the secretary of the company, acting under the directions of the president drew up this paper and submitted it to the president who approved of its contents, but with the suggestion only that it might be better to put it in the form of a letter to plaintiff for him to accept. Of course, the weight and the value of the testimony together with the credibility of the witnesses was a question for the jury.

The judgment should be affirmed. It is so ordered.

Reynolds, P. J., concurs. Allen, J., not sitting.