Southwick v. Hayden

Curia, per Woodworth, J.

I think the objection made by the defendant below was not too late. It was taken before the defendant offered any evidence. If the plaintiff produced the receipt at any time before he rested his cause, it was sufficient. The defendant, therefore, might well defer his objection, until the plaintiff had closed his testimony. If it was necessary to produce the receipt, or account for its loss, the plaintiff has failed. There is not proof of diligent search in the clerk’s office. Eor aught that was shown, it may remain there; as it appears to be satisfactorily made out, that the justice returned it to the office with other papers.

It seems to me, however, that parol evidence was com petent. The receipt was only matter of evidence. Although the declaration says the plaintiff declared on the receipt, it must be understood as a declaration for coals sold and de Iivered. The receipt was not the contract; but evidence to ' support it. How, although a written contract cannot be varied or proved by parol, I apprehend that this rule is not applicable, in its full extent, to a receipt given on the delivery of money or articles. In the case of Toby v. Barber, (5 John. 72,) the court say, “ it has been repeatedly held in this court, that a receipt is an exception to the general rule, that a writing cannot be explained or contradicted by parol.” Receipts are not conclusive; but open to examination. In the case’ cited, parol evidence was admitted to show that the receipt, though purporting to be in full, was founded partly on a note, which had mot been paid; and consequently was no payment of the demand; there being no agreement to take it as such. It may, therefore, be laid down as undoubted *law, that parol evidence is admissible to explain or contradict the terms of a receipt. If this is so, it cannot be correctly said, that a receipt falls within the rule, requiring the best evidence the nature of the case admits of, to be produced. It must be only on the ground that the receipt was the best evidence, that the objection can be sustained; but how can that be called the best evidence, which is itself liable to be destroyed, and done away by parol evidence ? 1

The plaintiff was, therefore, not bound to produce the receipt. In this case, the parol evidence was peculiarly necessary and proper; for the receipt, had it been given in evidence, was unintelligible without the aid of parol testimony ; it appearing by the justice’s return, that it was given for a number of bushels of 0. The evidence shows coals were intended.

I am of opinion, that the judgment of the common pleas be affirmed.

Judgment affirmed.