Dyer v. Fredericks

63 Me. 173

• Court: Supreme Judicial Court of Maine
• Decided: July 1, 1874
• Status: Published

Opinion

Rescript.

When the plaintiff offers parol evidencie of the contents of a bill of lading upon which he relies, originally executed in duplicate, the burden is upon him to show that neither of the parts can be produced. If the parol testimony which he offers is received, the presumption is that he has satisfied the court of this; and where there is no ground for'suspicion that either part is in the possession or under the control of the defendant, that presumption is not overcome by the naked fact that the defendant, a master of a vessel, testifies that one of the parts was once in his possession and was delivered by him to one of the owners of the vessel at the end of the voyage, ten years previous to the trial.

If the plaintiff believes that there is a reasonable probability that the ship’s bill thus referred to can be produced it is his duty to move the court for leave to summon the owner to produce it.

If he does not do this, the burden being upon him to account for the non-production of other of the bills, he cannot object to the defendant’s use of parol testimony to rebut the same kind of evidence adduced by himself. Exceptions overruled.