Carland & Bierne v. Cunningham

The opinion of the court was delivered, by

Thompson, J.

— The written agreement between the parties, and for a breach of which this action was instituted, was not produced at the trial, but a copy or supposed copy was offered, and admitted by the court. The admission of this evidence is assigned for error.

It is a rule of evidence, too ancient and too well understood to require proof of its existence, that the original instrument is better evidence than a copy, and that the primary source of information is better than the secondary. The latter is only resorted to after the necessity for doing so is shown to exist in an inability to produce the former. If the original instrument be lost or destroyed, this is a sufficient ground for secondary evidence. So if it be shown to be in the hands of the opposite party, who refuses to produce it on notice. But a preliminary step to proof of contents, after proof of existence, is proof of notice to produce it. This is indispensable to the admission of secondary evidence. Inconvenience or absence from the state is not an excuse for omitting this notice. The exception would be where the party himself could not be found after diligent inquiry. Then the law would treat the instrument as lost. Other exceptions are where the action is brought for the instrument itself; when proof of notice is not necessary. The action for the instrument is a demand for the production of it. There may be other exceptions to the rule. But the case in hand is not one. That the party lived in Buffalo is no reason for dispensing with the rule. Notice was indispensable, as the foundation for the admission of the copy: 1 Dall. 424; 7 W. & S. 32; 7 Barr 23. There was error in the admission of a copy of the instrument, and for this reason this judgment must be reversed.

We are all of opinion that the demand was the subject of foreign attachment. It was capable of being reduced to certainty by a definite standard, and this is all that is required, 3 W. C. C. R. 560, for id certum est quod certum reddi potest. Clearly the amount, after payment of the execution of Coit v. N. & E. Connelly, and the judgment of the defendants, out of the goods, they being chargeable with them as if sold to them, would be what the plaintiff would be entitled to. These sums were ascertained and fixed; and the value of the goods over and above their amounts, with interest from the conversion of the goods, would define the interest of the plaintiff in them. This he could recover, but nothing more in this attachment. He could recover nothing by way of damages for loss of the advantages of the arrangement. And this was what we understand the learned judge to have charged. But we are reluctantly obliged to reverse the judg ment on the first exception of the plaintiff in error.

Judgment reversed, and a venire de novo awarded.