Laubach v. Meyers , 147 Pa. 447 ( 1892 )

Opinion by

Mb. Justice G-reen,

The proceeding in this case is founded upon a note which the plaintiff in his statement, describes as lost or mislaid. The defendant is a surety only, having received no part of the consideration for which the note was given. In the’plaintiff’s statement there is set forth what is alleged and purports to be a copy of the note in suit. It is not a promissory note, but a single bill, with a warrant of attorney to confess judgment. The plaintiff’s statement is not verified by an affidavit, and is not even signed by the plaintiff. It is signed., “ O. J. Erdman, plaintiff’s attorney.” There is no allegation in the statement that the person who signed it had any knowledge of the instrument in suit, or that he had ever seen it, or knew anything of its contents.

The only allegation contained in the statement respecting the loss of the instrument, and the search for it, is in the following words : “ That the said plaintiff never negotiated or disposed of said note, but that he has lost or mislaid the same, and, after a diligent search, has been unable to find the same.” There is no averment in the statement that the defendant ever executed the instrument, or delivered it to any one. It is perfectly manifest, that if the case were on trial before a jury, and the plaintiff were called as a witness, and testified under oath to every fact contained in the statement, he could not recover.

The proof necessary to a recovery in an action on a lost instrument is quite different from that which is sufficient when the instrument is produced. In McCredy v. The Schuylkill Navigation Co., 3 Wh. 424, we held that evidence of the contents of an instrument alleged to have been lost cannot be given without previous proof of its due execution, which includes proof of its delivery, and where a witness, called to prove the former existence of an instrument, testified that it had been put into the hands of A. as an escrow, and A., on his examination, said that he could not recollect on what occasion, or with certainty, to whom it was given up, and that he should not have given it up without the consent of both parties, it was held that evidence of the contents of the instrument was properly rejected.

In the case of Porter v. Wilson & Kelly, 13 Pa. 641, ROGERS) J., in delivering the opinion of the court, said: “ Before evidence can be given of the contents of a written paper it is indispensable to prove, in the first place, the existence and execution of the original instrument; next, to give positive proof of its destruction, or of a diligent search by which its loss has been ascertained: 6 Binn. 234; Meyer v. Barker, 6 Binn. 228. The first inquiry naturally in order is, was the first indispensable prerequisite complied with? Was there legal and competent proof of the existence and execution of the alleged original article of copartnership ? The copy offered in evidence purports to be witnessed by William Stewart, who being examined, after stating he was in the employment of Holland & Porter, whose business was mining and transporting coal, and the necessary operations connected therewith, the selling of goods, merchandise and provisions, etc., proceeds to state that he knew there were writings between Samuel Holland and David It. Porter, but whether there were articles of co-partnership he cannot say. He thinks it probable he witnessed their writings, but he cannot recollect distinctly of signing them as a witness. He thinks those writings were executed about March 1. It must be confessed, the testimony of this witness is vague and shadowy as to the existence and execution of this instrument. He neither identifies the paper, nor does he recollect whether he signed it as a witness, nor does he know whether the evidence offered is a copy of the writing that was executed between the parties. That this, of itself, would not be the proof the law requires is clear. . . . “We take the distinction, which is a clear and marked one, between the proof of a lost instrument, and proof of a paper produced and under the inspection of a witness. It is the first class of cases which calls for the stringent proof alluded to, and not the last.

It will be perceived at once, that if distinct proof of the actual execution of a lost instrument is essential to a recovery upon it, it is quite as essential, in a plaintiff’s statement of his cause of action, that the fact of the actual execution of the lost instrument should be alleged. Without that fact there is no cause of action, and a statement, the allegations of which do not present the facts which are essential to a cause of action, is fatally defective.

But there is another point of view which is equally fatal to a right to have judgment on the present statement. The affidavit of defence contains the distinct averment that the Mrs. Henry F. Meyers, whose name appears as a subscribing witness to the paper of which the copy is set out in the plaintiff’s statement, died in April, 1885, more than five years before the date of the lost instrument in suit, and that, therefore, she was not a subscribing witness to that instrument. This is a direct and material challenge of the identity of the copy set forth in the statement with the original instrument. Upon the trial, if the copy were offered in evidence,- nothing short of the verdict of a jury could settle the question of identity, and it is perfectly manifest that no verdict for the plaintiff could be permitted until after clear and satisfactory testimony had been given in explanation of this most material discrepancy.

In addition to the foregoing, the affidavit expressly avers that the copy set forth in the plaintiff’s statement is not a correct copy of the instrument he signed, because the copy is an obligation to pay one day after date, which would be Sept. 4, 1890, whereas the instrument he signed was not payable until April 1, 1891. As the courts are bound by the facts set forth in the affidavit, another fatal discrepancy between the copy and the original appears, which would invalidate the original, if it is really drawn payable one day after date, being dated Sept. 3,1890. In Miller v. Gilleland, 19 Pa. 119, we held, that, in a suit by a payee against a surety in a note under seal, the alteration of the date of the note from 1836 to 1838, though made at the request of the payee in the presence of the surety, but without his assent, avoided the note as to the surety.

In Marshall v. Gougler, 10 S. & R. 164, it was held, that if the names of subscribing witnesses, not present at the execution, were added to the instrument after execution, with intent to authenticate it, the instrument would be avoided. Such added subscription of the names of witnesses was held to be a material alteration of the instrument itself, for the reasons stated in the opinion, and rendered it void. Prima facie, therefore, when the name of one who was not present at the execution of an instrument appears on it as a subscribing witness, the instrument is invalidated, and the burden of explanatory proof necessary to give it validity is cast upon the plaintiff seeking to enforce it.

The plaintiff’s statement also contains no averment of a proper search for the lost instrument. A mere assertion by a plaintiff, or other person attempting to prove a search, when testifying as a witness, in a general way, that he had made diligent search for the instrument, and could not find it, is altogether insufficient to permit proof of contents: Porter v. Wilson, supra. The search must be bona fide, diligent and thorough, and in the places where the paper is likely to be found. The facts which it is necessary to prove must be at least substantially averred in the statement, in order to get judgment in an action on a lost instrument, particularly when the identity of the instrument with the copy set up is denied.

An inspection of the copy set out in the statement exhibits a number of blanks not filled up in the warrant of attorney. Such omissions are inconsistent with an orderly and properly prepared legal instrument, and they east suspicion upon its integrity.

As the person who signed the statement presumably had no original knowledge of the instrument in suit, and makes no averment that he had ever acquired any knowledge, and as the action is upon a lost instrument, which requires a higher and more rigid line of supporting testimony than where the original is produced, before a recovery can be had upon it, it is very clear to us that the facts in the present case should all be submitted to the determination of a jury.

We are of opinion that it was error to enter judgment for the plaintiff on the statement and affidavit.

Judgment reversed and procedendo awarded.