Gilmore v. Whitcher

Decided January 15, 1863

Massachusetts Supreme Judicial Court · decided 1863-01-15

Replevin. At the trial in the superior court, before Russell, J., the plaintiff claimed title under a bill of sale, and, upon notice from the defendant to produce it, put into the case a bill of sale, which the defendant testified was not the same as a bill of sale of the same date, shown to him by the plaintiff, shortly after it was given, of which he made a copy which was now lost; and the defendant was further allowed to testify, under objection, to the contents of the…

Decided 1863-01-15

By the Court.

¶1Parol evidence was competent to prove the contents of a bill of sale, which the plaintiff had in his possession, and which he bad omitted to produce on notice. By the production of a paper on the call of the defendant which was different from the one for which the defendant asked, he could not preclude the defendant from showing that the paper so produced was in fact different, and from proving the contents of *114the paper which was withheld by the plaintiff. It appearing that the copy of this paper which the defendant took had been lost, no question concerning degrees of secondary evidence can arise. The only mode of showing the contents was by verbal evidence.

¶2Exceptions overruled.