BAGLEY v. ADMINISTRATORS OF McMICKLE, EATON, et al., 9 Cal. 430

Field, J., delivered the opinion of the Court—Terry, C. J., concurring. This is an action upon three promissory notes executed by McMickle, deceased, to Bagley and Sinton, and by them transferred to the plaintiff. At the solicitation of the maker, the notes were delivered to him in August, 1852, by the holders, and in their presence and with their consent were then destroyed.

On the trial, the plaintiff, in order to account for the non-production of the notes, and to lay the foundation for the introduction of secondary evidence of their contents, read to the Court his own and his co-payee’s affidavits, detailing the circumstances and motives which occasioned the destruction of the notes.

These affidavits were held by the Court sufficient to authorize the admission of the secondary evidence, and thereupon the plaintiff gave in evidence and read to the jury a bond or contract, executed in duplicate by all the parties simultaneously with the notes, the maker of the notes retaining one part, and Bagley and Sinton the other. This bond sets forth with sufficient particularity the contents of the notes; it gives their date, amount, and consideration, the parties to whom they were executed, the time they had to run, and the interest they drew.

The transfer of the notes to the plaintiff, the presentation of his claim arising thereon to the administrators) its rejection by them, and the commencement of this suit within three months thereafter, were duly proved. With the above, and the admission of the appointment of the defendants as administrators, and that the presentation of the plaintiff’s claim was made to them within ten months after their publication of notice calling in claims against the estate of the deceased, the plaintiff rested his case. Uo evidence was offered on the part of the defendants.

The Court thereupon, among other things, instructed the jury that there was no testimony to show that any amount was due upon the notes, and that as the affidavits read to the Court to authorize the secondary evidence of their contents traced the notes to the possession of the maker, and disclosed that they were destroyed by him with plaintiffs consent, no presumption was raised that they were unpaid, in whole or part, but, on the contrary, a presumption was raised in favor of the maker, which the plaintiff was bound to explain by additional evidence; that the affidavits themselves contained an explanation, but in this respect went beyond their true purpose.

The verdict and judgment were for the defendants, and a motion for a new trial having been denied, the plaintiff appealed, and assigns these instructions as error. It is not a matter of course to allow secondary evidence of the contents of an instrument in suit upon proof of its destruction. If the destruction was the result of accident, or was without the agency or consent of the owner, such evidence is generally admissible.

But, if the destruction was voluntarily and deliberately made, by the owner, or with his assent, as in the present case, the admissibility of the evidence will depend upon the cause or motive of the party in effecting or assenting to the destruction.

The object of the rule of law which requires the production of the best evidence of which the facts sought to be established are susceptible, is the prevention of fraud ; for, if a party is in possession of this evidence, and withholds it, and seeks to substitute inferior evidence in its place, the presumption naturally arises, that the better evidence is withheld for fraudulent purposes which its production Avould expose and defeat.

When it appears that this better evidence has been voluntarily and deliberately destroyed, the same presumption arises, and unless met and overcome by a full explanation of the circumstances, it becomes conclusive of a fraudulent design, and all secondary or inferior evidence is rejected. If, however, the destruction was made upon an erroneous impression of its effect, under circumstances free from suspicion of intended fraud, the secondary evidence is admissible. The cause or motive of the destruction is then the controlling fact which must determine the admissibility of this evidence in such cases. In Riggs v.

Tayloe, (9 Wheaton, 488,) the plaintiff brought suit upon a contract for the sale of bank stock, executed in duplicate between the parties, each retaining a counterpart. Having lost his own counterpart, the plaintiff gave notice to the defendant, to produce on the trial the one he had, but the defendant declined doing so, alleging that he had lost his also.

On the trial, the plaintiff offered to prove the contents of the contract by a subscribing witness, and to entitle him to give this testimony, made the following affidavit: “ The plaintiff in this case makes oath, in relation to the memorandum of agreement between the defendant and himself, relative to the stock in the declaration mentioned, that his impression is that he tore up the same after the transfer of the stock, believing that the statements upon which the contract had been made were correct, and that he would have no further use for the paper.

He is not certain that he did tear it up, and does not recollect doing so, but such is his impression. If he did not tear it up it has become lost or mislaid ; and that he has searched for it among his papers repeatedly and cannot find it.” The defendant objected to the testimony, and insisted that no evidence of the contents of the contract should be allowed. The objection was sustained, and the defendant had judgment, and the case was taken to the Supreme Court of the United States, where it was held that the Circuit Court erred in refusing to let the evidence go to the jury, and the judgment was reversed.

In rendering its decision the Supreme Court said: “It is further contended, that it. appears from the plaintiff’s own showing, the destruction or loss of the writing was voluntary, and by his own default; in which case ho ought not to be permitted to prove its contents.

It will be admitted that where a writing has been voluntarily destroyed, with an intent to produce a wrong or injury to the opposite party, or for fraudulent, purposes; or to create an excuse for its non-production, in such cases the secondary evidence ought not to be received ; but in cases where the destruction or loss (although voluntary) happens through mistake or accident, the party can not be charged with default.

In this case the affiant swears that if he tore up the paper it was from a belief that the statements upon which the contracts had been made were correct, and that he would have no further use for the paper. In this he was mistaken.” In Blade v. Noland, (12 Wendell, 174,) the plaintiff testified that he burnt up the note in suit, the morning after it was given. The destruction was deliberately made, and no explanation of the act was offered on the trial.

The plaintiff had judgment in the Justice's Court, which was affirmed on certiorari in the Common Pleas, and the case was taken to the Supreme Court of Mew York, where the judgment was reversed. In rendering its decision, the Court said : “ The proof is, that plaintiff deliberately and voluntarily destroyed the note before it fell due, and there is nothing in the case accounting for or affording any explanation of the act, consistent with an honest or justifiable purpose.

Such explanation the plaintiff was bound to give affirmatively, for it would be in violation of all the princijfies uj)on which inferior and secondary evidence is tolerated, to allow a party the benefit of it who has willfully destroyed the higher and better testimony. I have examined all the cases decided in this Court, where this evidence has been admitted, and in all of them the original deed or writing was lost or destroyed by time, mistake, or accident; or was in the hands of the adverse party.

Where there was evidence of the actual destruction of it, the act was shown to have taken placo under circumstances that repelled all inference of a fraudulent design.” In the case of the Bank of the United States v. Sill, (5 Conn., 106,) the Court said: “ When the holder of a bill voluntarily and intentionally destroys it, or alters it fraudulently, he has no remedy, but if he loses, cancels, alters, or destroys it, by accident or mistake, his rights are not affected; his evidence only is impaired.

A bill or note is not a debt, it is only primary evidence of a debt j and when this is lost or destroyed, bona fide, it may be supplied by secondary evidence.” Authorities to the same effect might be cited almost ad infinitum. From them it is clear, that the cause or motive of the destruction of the instrument in suit, when voluntarily made, must determine the question of the admissibility of secondary evidence of its contents.

From them it is also clear, that the facts and circumstances of the destruction must be shown in the first instance to the Court, to enable it to judge of the propriety of admitting or refusing the secondary evidence. These facts and circumstances, in a great number of instances, probably the greater number, are known only to the parties themselves, and from them alone can any proof be obtained.

The same principle, then, which allows the parties to prove by their own testimony the destruction, must necessarily allow them to prove all such facts and circumstances as are requisite to the introduction of the secondary evidence. If the testimony of independent and disinterested witnesses were essential to prove these facts and circumstances, there could never be any necessity for the testimony of the parties themselves to the destruction.

The circumstances of the destruction could only be known in connection with the destruction itself, and the latter fact could be established with the former facts by the same witnesses. ' The naked fact of voluntary destruction without explanation, is held such presumptive evidence of fraudulent design, as to preclude all secondary evidence, (Blade v.

Noland, 12 wend., 173,) and the restriction placed upon the rule by the Court below, in this case would deprive it of all practical benefit in the numerous, and by far the largest class of cases, where the destruction has taken place when no third party was jiresent.

We do not think, therefore, that the affidavits read to the Court below, in explaining the possession and destruction of the notes in suit by the maker, went “ beyond their true purpose.” We do not find any adjudicated case directly upon the question; but in a great number of cases which we have examined, the facts and circumstances are set forth in the affidavits of the parties, and in some instances, with great particularity; and, so far from any objection being-taken to them on this ground, the facts thus detailed are generally referred to as justifying the admission of the secondary evidence.

Thus, in Riggs v. Tayloe, cited above, the statement of the plaintiff, in his preliminary affidavit, of his motive in the destructien of the contract in suit, is referred to in the opinion of the Court as a sufficient explanation to remove the objection to the admission of the secondary evidence. The preliminary proof is addressed to the Court, and of its sufficiency the Court is the sole judge.

We do not find in the cases cited, nor have we been able to find any authority for the ruling that a presumption against the plaintiff, arising upon facts detailed in the preliminary affidavits, is to be explained by evidence to the jury; or for the observation of the Court below, in its opinion on the motion for a new trial, that “sometimes the facts and circumstances connected with the destruction have been submitted to the jury, to be passed upon by them in considering their verdict," unless such facts and circumstances were disclosed in the evidence offered to the jury after the question of the admissibility of secondary evidence had been disposed of by the Court.

In Page, Executor, v. Page, 15 Pick., 368, the preliminary affidavits only showed a diligent and an ineffectual search for the note in suit among the papers of the testator; it was the evidence before the jury which traced the note to the possession of the defendant, and upon the presumption of payment arising from that possession, the defendant rested as one of the grounds of „ his defence.

Chief Justice Shaw, who tried the case, instructed the jury, “that ordinarily the non-production of a note by a party claiming under it raises a presumption of payment; and, therefore, to entitle the plaintiffs to recover, it was not sufficient to prove merely the execution and contents of the note, without some evidence of the loss of it; that here the affidavit of Kelly Page (one of the plaintiffs) stating that he had searched among the papers of the testator, and had not been able to find such a note, was such evidence of its loss as to let in secondary proof of its existence and contents; and that if the jury should be of opinion, upon the whole evidence, that it was not paid to the testator in his lifetime, but remained in the custody of the defendant at the time of the testator’s decease, this would be sufficient to rebut the payment arising from the non-production of the note by the plaintiffs/'’ The plaintiff obtained a verdict, and the defendant moved for a new trial, assigning, as one of the grounds of his motion, this commentary, or rather reference to the preliminary affidavit; but the Supreme Court, in denying the motion, said : “ The only commentary made upon the affidavit was an explanation of the reason why the Court admitted secondary evidence.

It was entirely proper, as some of the jury, without such an explanation of the rule of the law touching secondary evidence, might have hesitated to give a verdict upon a note which was not produced. The whole charge, it seems to us, was unexceptionable upon that point.” We can not see anything in this case which gives the slightest support to the instructions in the case at bar.

The reference to the preliminary affidavit was simply to remove from the minds of the jury any difficulty which might have arisen from the non-production of the note; and by the “whole evidence,” upon which the jury were instructed to form their opinion of the payment of the note, was meant the whole evidence before them. The presumption of payment from the non-production of the note, arising upon evidence before the jury, was, of course, to be met and rebutted by evidence before them.

But in the case at bar, no such presumption could arise, for there was no evidence before the jury of any possession of the notes in suit by the intestate after their execution to Bagley and Sinton. The presumption, if any, arose upon the preliminary evidence, upon which the jury could not pass. Arising in the mind of the Court, it should have been stated at the time, in order that the plaintiff might have introduced other evidence, if he possessed it. Such presumption was disposed of by the ruling on the sufficiency of the affidavits, and in admitting the secondary evidence. In Garloclc v.

Georbner, (7 Wend., 199,) the plaintiff' sued for the amount of a promissory note, alleged to be in the possession of the defendant, and to have been given upon the settlement of a slander suit. In addition to the note, the costs of the slander suit were to be paid by the defendant. The general issue was pleaded, accompanied with notice that the defendant would prove a voluntary delivery up of the note, by the plaintiff, to him.

On the trial, the agreement to settle the slander suit, the execution and contents of the note, its delivery to the defendant, and the payment of the costs of the slander suit, were duly proved.

The plaintiff then called upon the defendant to produce the note, and on his refusing to do so, offered to prove that, under an impression that the defendant was entitled to its possession, until the costs were adjusted and paid, he had given the note up to the defendant, to keep until such payment or settlement; that, after receiving it, the defendant promised to pay the costs, and the amount of the note when it became due, and had made a similar promise after the costs were paid.

This evidence, upon objection, was rejected, and the plaintiff nonsuited, and the case went to the Supreme Court, where the judgment was reversed. Mr. Justice Nelson, in delivering the opinion of the Court, said, whether the note “ was intended to be given up and relinquished by the plaintiff or not, when pout in the defendant’s possession, should have been submitted to the jury.

If the note was put by the plaintiff into the possession of the defendant through misapprehension, or ignorance of his rights, or for safe-keepfing merely, or for any other cause inconsistent with the intention of relinquishing his property in it, for aught appearing in the bill of exceptions, the plaintiff would be entitled to recover.

The pdaintiff should have been allowed, if he could, to explain the possession of the note by the defendant, as well to rebut the prima facie inference of extinguishment of it, as to account for its non-production on the trial.” In this case, there was no preliminary proof addressed to the Court; and the presumption of extinguishment of the note, from its possession by the defendant, of course, could only arise upon the evidence before the jury. This case, like all the others cited, furnishes no authority for the instructions in the case at bar.

The secondary evidence being admitted, it became the province of the jury to judge of its credit and weight. It took the ptlaee of the primary evidence, and was entitled to the same consideration. It was a substitute for the original notes, and if sufficiently full as to their contents, it pfiaced the plaintiff in the same position in Court as though the secondary evidence had never been required. (Jackson v. Betts, 9 Cowen, 222.) The distinction between primary and secondary evidence, has reference to its quality, and not to its strength. Secondary evidence may be equally conclusive as primary.

In the present case, the former existence of the notes, their contents, their execution by the intestate to Bagley and Sinton, and their assignment to the plaintiff, were fully established by the secondary evidence; yet the consideration of this evidence was taken from, the jury by the instructions. The objection that the bond in evidence does not prove the delivery of the notes in suit, to Bagley and Sinton, we do not think tenable.

The instrument was intended for the protection of the intestate; it contains no promise on his part, but an obligation to him of $12,000, for the fulfillment of its condition by Bagley and Sinton. It recites the entire agreement between the parties, and the amount “ due Bagley and Sinton ” on the day of its execution, and that the intestate “ has executed unto ” them the three promissory notes in suit; and specifies the deed to which he shall be entitled on their payment, and the consequences of default. The terms “ has executed unto,” when applied to instruments of writing, import both making and delivery.

The recital of the fact, under seal, that the intestate “ has executed unto the said Bagley and Sinton,” in the past tense, the notes can have but one meaning, namely: that the intestate has made and delivered the notes to them. The judgment of the Court below is reversed, and the cause remanded for a new trial.