POOLE AND WIFE v. GERRARD et al., 9 Cal. 593

Burnett, J., delivered the opinion of the Court—Field, J., concurring. This was an action to recover certain premises, alleged by plaintiffs to be their homestead. The defendants claimed the premises under separate deeds from plaintiffs. The trial was had before a jury, and the main issue was the marriage of the plaintiffs. Verdiet for defendants; motion for new trial overruled, and plaintiffs appealed. 1. The first point made by the plaintiffs is, that the Court erred in admitting in evidence the separate deeds of the plaintiffs, to the defendant Gerrard, to the premises in question.

The plaintiffs based their right to recover entirely upon the question of homestead; and the separate deeds of the plaintiff were immaterial under the issues made by the pleadings. But, from the record, we can not perceive how the plaintiffs were injured. It is stated that the Court charged the jury, but the instructions given are not found in the record; and. we must presume that the Court gave proper instructions. With proper instructions, the admission of the deeds could do the plaintiffs no harm. 2.

The second objection made by plaintiffs' counsel goes to the admission of parol proof of the contents of a written agreement, without first laying’ the proper foundation. The main question being the marriage of plaintiffs, to sustain the issue on their part they proved that they had lived together as husband and wife, and were so considered by the community in which they lived.

To rebut this proof, the defendants proved the declarations of Helen Poole that they wore not married; and then proved by the same witness that Helen Poole had shown to the witness a written contract between the plaintiffs; that witness read the contract; and that it was a contract for plaintiffs to live together as long as they could agree. The plaintiffs objected to the introduction of this proof, without the proper notice to produce the writing itself. The objection was overruled, and proper exception taken. The four hundred and forty-seventh

section of the Code provides that “there shall be no evidence of the contents of a writing other than the writing itself, except in” the cases mentioned. The second exception stated is, where “ the original is in possession of the party against whom the evidence is offered, and he fails to produce it, after reasonable notice.” Where parol testimony is offered, simply to prove the fact that a writing was made in reference to the matter in controversy, without stating the contents of the same, it is admissible, if relevant, under the circumstances of the particular case.

But, when it is sought to prove the stipulations contained in the writing, the parol evidence is not admissible, without first taking the proper preliminary steps. The Code is very explicit, that you shall not prove the contents of the writing other than by the writing itself, except in the cases mentioned. The counsel of defendants insists that the contents of the contract proved by the witness were merely collateral, and, therefore, inadmissible. To sustain his position, he refers us to the cases of Tucker v. Welsh, (17 Mass. Rep., 164,) and McFadden v.

Kingsbury, (11 Wend., 667.) In the first case cited the decision of the point was not necessary, and the language of the opinion was mere dictum. This dictum has been questioned by very high authority. (2 Cowen & Hill's notes to Phil, on Ev., 400.) In the second case, it was not necessary to prove the notice at all; and it is not perceived how rejecting the oral proof of the contents of the written notice could have been error. And it may be remarked that, in stating the exception to the general rule, requiring the production of the writing itself, Professor Ureonleaf, in

section eighty-nine of his very accurate work on evidence, is very careful not to put in tho text the two instances found in the cases cited above, but simply refers to them, without comment, in tho notes.

The true rule is stated in 2 Cowen & Hill’s notes, on page 401, with great clearness: “So, where tho transaction, or matter to which the writing relates, may bo proved entirely independent of it, yet, if the contents are inquired after, it must be produced $ for, as to these, it is the best evidence.” The contents of the written contract between the plaintiffs wore most material to the main issue in tho case, and these contents could only be known from the writing. The knowledge of the witness was derived from tho writing itself.

The mere fact that there was a contract between tho parties could avail the defendants nothing, without proof of its contents,- and the best proof of these contents was tho writing itself. No mítico to produce the writing having been first given, the Court below erred in permitting proof of its contents to go to tho jury. 8. Tho third point made by the plaintiffs is, that the Court erred in admitting in evidence tho declarations of Helen Poole, to disprove tho prima facia case made by the plaintiffs. We think there was no error in this. (Jewell’s Lessee v. Jewell, 1 How. U. S.

Rep., 219.) For the reason stated tho judgment must be reversed, and the cause remanded for further proceedings.