majority">Davison, <L

This was assumpsit, instituted under the old system of procedure, by Spencer and McCurry, administrators of John McCurry; deceased, against William Meek. The declaration alleges that in October, 1851, the administrators sold to Meek, at public auction, a quantity of corn, then standing and growing on the farm owned by, the decedent at his death, which corn was to be gathered by them and stored upon the premises within a reasonable time after the sale; that Meek bid off the corn as follows: 250 bushels at 31 cents, and the residue, alleged to be 984 bushels, at 32 cents per bushel — which being computed makes the aggregate amount of 394 dollars; and that the sale was on a credit of six month's, the purchaser giving his note with security, &c. It is averred that the corn was gathered within a reasonable time, and.notice thereof given to Meek, who refused to accept it; and that by reason of such refusal, the admin*119istrators were compelled to, and actually did, sell it for 265 dollars. The object of this suit is to recover the difference between the two sales. There was a verdict in favor of the plaintiffs for 5(0 dollars, and, over a motion for a new trial, judgment on-the verdict.

Diming the trial, the plaintiffs introduced George W. Swortout, wlj.o testified that he was clerk of the above sale; that as each article was sold he entered the' name-of thejbuyer^ the article sold, and the amount bid, on a paper which he had for that purpose — which paper, though its heading contained the terms of sale, was intended merely as a rough memorandum, and designed to aid witness in making out a complete sale bill; that about two weeks afterwards, he made out a regular sale bill which contained the entries made on the memorandum, — which bill was sworn to by witness and filed in the clerk’s office of the Probate Court, — and that since the making of said bill, he has not seen the memorandum, but believes he left it with the plaintiffs. Thereupon the affidavit of Spencer, one of the plaintiffs, was read, wherein he states that the memorandum was left in the hands of Swortout, the clerk of the sale, for the purpose„of making out a sale bill; that affiant has- not since "‘had the same in his custody; that he has made diligent inquiry to find it, but in that he has failed; and that he verily believes that it is lost or destroyed. Upon this preliminary evidence the plaintiffs, to prove the sale of the corn to the defendant, produced from the files of the clerk’s office the aforesaid bill of sale and offered it in evidence to the jury, and, over the defendant’s objection, it was admitted. This ruling is assigned for error.

The loss of the memorandum is not, in our opinion, sufficiently proved to authorize secondary evidence of its contents. As a general rule, a party is not allowed to produce such evidence until a bona fide and diligent search has been unsuccessfully made for the lost instrument, in the place where it is most likely to be found. 1 Greenl. Ev. s. 558. — 4 Hlackf.- 2, note 1. Here,"the' clerk of the sale states his belief that' he left the memo*120randum with the plaintiffs, one of whom swears that it was left with the clerk. It was no doubt at one time in his hands; but the recordáis silent as to whether he has searched for it in accordance with the above rule. And for aught that appears, a bona fide and diligent search made by him would have been successful.

¥e are, however, referred to an act in force when this suit was instituted, which provides that an account of sales made by the administrator shall be kept by a clerk not interested, &c.; “ and such account shall specify the 'time and place and conditions of sale, the different articles sold, and by whom purchased, &c.; which account, sworn to and subscribed by such clerk, shall be filed by such administrator in the office of the clerk of the proper Probate Court to be preserved as evidence of the sales of property therein specified.” R. S. 1843, p. 518. This, it is insisted, makes the sale bill the best evidence of the sale; and we are inclined to that opinion. The language of the enactment is sufficiently explicit and broad enough to cover every case in which it is incumbent on an administrator to prove a sale made by him of his intestate’s property. It follows that the sale bill was admissible without the preliminary evidence.

After the plaintiffs had gathered and measured the corn, and Meek had refused to, receive it, they obtained an order from the Probate Court authorizing them to. sell it at private sale, which they accordingly did, for the price of 265 dollars, and made report thereof to the Court. All the proceedings relative to this sale were offered in evidence to the jury, and, over the defendant’s objection, admitted. If a resale of the corn was at all allowable, the ruling of the Court was not erroneous; because the action of the administrators, though it was under the order of the Court, could in no way injure the defendant. But it is said the. plaintiffs, by applying for and procuring the order to sell the corn at private sale, abandoned the contract with Meek. This position, in effect, concedes their right to sell, and assumes that the sale having been private, operated as a waiver of the *121original contract between tbe parties. But why should a private sale produce such a result? Assuming that the plaintiffs have fully complied with their contract, and that the defendant’s default compelled them to resell the corn, it is not for him to say whether such resale should have been public or private, provided it was sold at its fair value at the time of sale; and whether it was or not was a question for the jury. The evidence shows that the corn was sold to the defendant on the 15th of October, 1851; that itwas all gathered by the 15th of January, 1852, and about the last of that month he was notified of its readiness for 'delivery, when he declined taking it,, alleging that by doing so he would lose too much, and proposed a compromise. He did not, however,-obj ect to the notice. In relation to these proofs, it is insisted that the corn was not gathered, nor was the defendant notified of its readiness for him, within a reasonable time. This position involves a question which, under the circumstances of the case, was for the jury to decide. It was for them to say whether the corn was gathered and the defendant notified within a reasonable time. They have decided the question, and, in view of the evidence, we are not inclined to disturb their conclusions.

H. C. Newcomb, for the appellant.,J. W. Gordon, for the appellees.Per Curiam.

The judgment is affirmed with 10 per cent, damages and costs.

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