Garlock v. Geortner

7 Wend. 198

Opinion

By the Court,

Nelson, J.

The court erred in refusing to' admit the evidence offered to be given by the plaintiff; to account for not producing the note, the amount of which he was seeking to recover. The execution and delivery of the note by the defendant to the plaintiff was proved, and whether it was intended to be given up and relinquished by the plaintiff or not, when put in the defendant’s possession, should have been submitted to the jury. If the note was put by the plaintiff into the possession of the defendant through misapprehension, or ignorance of his rights, or for safe keeping merely, or for any other cause inconsistent with the intention of relinquishing his property in it, for aught appearing in the bill of exceptions, the plaintiff would be entitled to recover.

The plaintiff should have been allowed, if he could, to explain the possession of the note by the defendant, as well to rebut the prima facie inference of extingnishment of it, as to account for its non-production on the trial.

Judgment reversed, and venire de novo awarded.