Harmon v. Decker

¶1On Petition for Rehearing.

¶2delivered the opinion.

¶36. Plaintiff’s counsel, having filed a petition for a rehearing, contend therein that the trial court rejected material testimony to their prejudice, which action it is said this court failed to consider, although duly assigned as error. At the trial, in order to show that defendant was indebted to Gasquet’s estate in the sum sought to be recovered, they attempted to prove the contents of a lost instrument by Fred Frantz, who testified that, as one of the executors of the last will of Horace Gasquet, deceased, he found among his papers a statement of account which he thought was in Decker’s handwriting; that this document was lost or mislaid; that he supposed it had been sent to plaintiff at Grants Pass, Oregon; that he had searched among all the effects in his possession at Gasquet and Crescent City, California, and was unable to find the missing paper. Referring to the statement and to persons residing at Grants Pass, where the trial was held, he was asked to state what inquiries he made there, and of whom, to which he replied: “Made inquiries of Mr. Harmon, and searched everywhere at home, and can’t find it.” Plaintiff, appearing as a witness in his own behalf, testified that, as administrator of Gasquet’s estate in Oregon, he received from Frantz what purported to be a statement of account between Decker and Gasquet, dated about December 31, 1895, and that about a year prior to the trial it disappeared from the files of the estate at the court house in Josephine County, and he did not know what had become of it. In answer to the question, “What search have you made for it since that time?” the witness said: “I have *598searched all the files and records, — all the papers that I have in my office; in fact I have made a pretty clean search for it. I haven’t it in my possession at all. Q. Have yon searched in all places where it conld be, to your knowledge? A. I have.” The witnesses Frantz and Harmon having been requested to state in detail the contents of the statement of account, the court refused to hear such testimony, and exceptions were reserved, whereupon plaintiff’s counsel stated to the court that they expected the answers of the witnesses to show that they had seen the lost statement; that it was in Decker’s handwriting, dated about December 31, 1895; and that it showed a balance of $2,908.80 due from him to Gasquet.

¶4The question to be considered is whether the court erred in not receiving the testimony so offered. To avoid the presumption that higher evidence would be adverse from inferior being produced (Hill’s Ann. Laws, §776, subd. 6), a party is expected to furnish the best evidence obtainable. When primary evidence of a material fact cannot by a reasonable effort be secured, secondary evidence of the contents thereof is often admissible. Thus, the rule that there shall be no evidence of the contents of a writing other than the writing itself is subject, among others, to the following exception: “When the original cannot be produced by the party by whom the evidence is offered, in a reasonable time, with proper diligence, and its.absence is not owing to’ his neglect or default”: Hill’s Ann. Laws, §691. No precise rule can be prescribed as to what shall be considered a reasonable effort, but the party alleging the loss or'destruction of a document must show that he has in good faith exhausted in a reasonable degree all sources of information and means of discovery which the nature of the ease would suggest, and which are accessible to him: Wiseman v. Northern Pac. R. Co., 20 Or. 425 (26 Pac. 272, 23 Am. St. Rep. 135). It will be remembered that Harmon testified that the statement of account was last seen in the court house at Grants Pass, about a year prior to the trial, which was held November 20, 1899. His testimony fails to show, however, that he made any examination of the papers on file at the court house in said county, unless such fact is to be *599inferred from his affirmative answer to the question: “Have you searched in all places where it could be, to your knowledge ?” The answer to this interrogatory must be held insufficient, for otherwise the witness, and not the court, would be the judge of the places to be examined for the discovery of lost documents. Harmon says he “searched all the files and records,” which, at a casual glance, might seem to imply that he had made an examination of the papers on file at the court house in said county in the matter of the estate of Horace Gasquet, deceased; but by limiting the investigation to “all papers that I have in my office” he necessarily excludes an examination of the papers at the court house where the statement of account was filed. The document having been filed in the proper office, search should have been made in such office to rebut the presumption that it remains there: Hill’s Ann. Laws, §776, subd. 33; Jones, Ev. § 213. No direct testimony having been offered to the effect that the court house had been searched for the discovery of the missing paper, the plaintiff failed to make the showing required, in order to let in secondary evidence of the contents of the statement of account, and no error was committed in its exclusion.

¶57. Plaintiff offered in evidence Decker’s books, which disclosed that his account coincided with Gasquet’s in respect to the annual interest purporting to be due from him. The court, referring to such entries in charging the jury, said: “'These items, standing alone, would not be sufficient to warrant you in saying Mr. Decker thereby admitted the amount claimed on the part of the plaintiff. If the plaintiff had offered evidence, and it had been admitted by the court, showing that Mr. Decker had actually owed Mr. Gasquet the amount claimed in the complaint, and that Gasquet was entitled to charge interest on the same, then the credits on Mr. Decker’s books might be considered as a circumstance tending to support the plaintiff’s claim; but in the absence of other evidence, the entries in Decker’s books would not warrant you in saying that the items claimed on the part of the plaintiff were thereby admitted by Mr. Decker.” It is contended that the court erred in giving this instruction. To render it intelligible it is deemed necessary to state that Gasquet’s *600books show that his account purports to have begun December 31, 1889, with the following charge:

“To amt. of note................................$5,448.51

To interest on same, 14 mo. @ 6% per annum...... 381.39”

¶6leaving, as apparently due him, after deducting certain payments made by Decker, a remainder of $4,564.62, the interest upon which, for the year ending December 31, 1890, is $288.21. The account is balanced each year, and the new principal forms a base upon which interest is charged, as follows: 1891, $373.87; 1892, $227.35; 1893, $195.06; 1894, $182.13; 1895, $157.36,— leaving due March 1, 1896, as disclosed by Gasquet’s account, $2,908.08, but according to the defendant’s books only $382.14, for which judgment was given. The instruction complained of presents the question whether Decker’s entry in his books of the annual interest, which coincided with Gasquet’s account thereof, affords a conclusive recognition of the debt and a promise to pay the sum upon which such interest is calculated. The fact that in consequence of certain payments made by him the annual interest charge was constantly diminishing is a circumstance tending to show that he promised to pay the principal originally charged to him, and hence rendering him liable for the sum found to be due March 1, 1896, as disclosed by Gasquet’s books. While such circumstance raises an inference in favor of plaintiff’s theory of the case, we do not think it irresistibly follows that because Decker recognized the interest by annually entering in his books' a memorandum thereof he thereby in the absence of any testimony upon the subject, conclusively evidenced a promise to pay the principal upon which such interest is calculated. Interest is ordinarily an incident of and follows the principal upon which it is based, the latter being the substance and the former its shadow; but because the interest is an incident of the principal it does not irresistibly lead to the conclusion that the principal follows the interest. It would appear from Gasquet’s books that the debt with which Decker was charged was originally incurred on account of certain buildings conveyed by George W. and W. J. Wimer to Gasquet. No evi*601dence was introduced tending to show that these buildings ever became the property of Decker, or that he agreed to purchase them, or that any consideration ever existed for the debt so charged to him. If Decker had agreed to purchase the property, the fact could undoubtedly have been established without resorting to such an indirect method of inferring the existence of the debt as by a mere credit upon his books of an annual interest thereon; for it may be that such interest was the rent agreed to be paid for the use of the buildings. We think the court’s charge was warranted by the evidence, and no error was committed in giving it. It follows that the petition for rehearing is denied. Eehearing Denied.