Sermons v. . Allen

113 S.E. 605, 184 N.C. 127, 1922 N.C. LEXIS 30

• Court: Supreme Court of North Carolina
• Decided: September 27, 1922
• Status: Published

Opinion

Stacy, J.

Tbe contract between tbe parties was in writing, but it was not offered in evidence. Its terms are in dispute and tbe plaintiff undertook to show what they were by secondary proof. Tbe appeal presents, in tbe first instance, tbe competency of this evidence.

Henry L. Sermons, son of tbe plaintiff, but who was not a party to tbe suit, testified that there were four copies of tbe contract; that be bad a copy, bis father and mother each bad a copy, and that tbe defendants bad a copy. He further testified: “I do not know what became of them after tbe sale was concluded. I kept my copy in my trunk in tbe bouse. My wife and I have both looked thoroughly for it. I have not looked for my mother’s copy. We live about one hundred and fifty yards apart.

“Q. Just state what tbe contract was?”

Defendants’ counsel to tbe court: “If your Honor please, no notice has been served on us.”

Tbe court to defendants’ counsel: “Yes, sir; let that appear in tbe record.”

Plaintiff’s counsel to tbe court: “We now demand production of it, if they have it.”

Tbe witness further testified, on cross-examination: “I think there were two separate contracts made, one between me and Allen and Murray (for my part of tbe land), and one between my mother and father and Allen and Murray. ... I really don’t know whether there were two contracts or not. That’s tbe truth, for sure, I think there were two.”

Mrs. Sermons testified: “I remember tbe time tbe contract was made. I have never seen tbe contract since tbe day tbe land was sold.”

“Tbe court found as a fact that tbe contract in question, in tbe possession of tbe plaintiff, bad been lost, and that a diligent -search for it bad been made, to which tbe defendants excepted.”

We agree with counsel for defendants that tbe foregoing was not sufficient to warrant tbe introduction of secondary evidence to prove tbe contents of the written instrument. Avery v. Stewart, 134 N. C., 287, where this question is exhaustively treated in an opinion by Associate Justice Walicer. The only positive evidence of the loss of the contract here sued upon was the testimony of Mrs. Sermons to the effect that she had not seen the contract since the day of sale. The rule applicable in such cases is stated in 1 Greenleaf on Evidence, see. 558 (16 ed., sec. 563 b), as follows: “It seems that in general the party is expected to show that he has in good faith exhausted, in a reasonable degree, all the sources of information and means of discovery which the nature of the case would naturally suggest, and which were accessible to him.” See, also, Green v. Grocery Co., 159 N. C., 118, and Thompson v. Lumber Co., 168 N. C., 228.

It will be observed that the court’s finding only established the loss and inability, after diligent search, to locate the plaintiff’s copy of the contract. No notice was served on the defendants, prior to the trial, to produce their copy. The cause was then being tried in Craven County, and the defendant Allen lives in Wake. “Generally, if the party dwells in another town than that in which the trial is had, a service on him (to produce papers) at the place where the trial is had, or after he has left home to attend the court, is not sufficient.” Beard v. R. R., 143 N. C., 141.

The other exceptions are not likely to arise on another hearing, and we shall not consider them now.

New trial.