J. W. Lathrop & Co. v. Mitchell

McCay, Judge.

We do not go into the evidence educed on the trial on either side, in this case. The date of the notice and its contents were material, and it was the right of the plaintiff to insist that the original should be produced. Was the foundation laid for the parol proof? If the notice was given to Coker, the agent, the presumption is that he transmitted it to the principal, and search for it now by Coker, or inquiry of him, does not exhaust the duty to search further. Notice to the plaintiff would be the proper mode. If notice to sue was sent him by Mitchell, or by Coker, it is a fair presumption that he has it, and, on notice, will produce it. The law requires all the proper custodians of a paper to be inquired of before parol evidence of its contents are allowed.

We think a new trial ought to be granted on this ground. The inquiry of Coker so long after the transaction is not enough. The presumption is that plaintiff has the paper, and he was entitled to notice to produce it before parol evidence was admissible.

Judgment reversed.