Smith v. Axtell

New Jersey Court of Chancery

Smith v. Axtell

1 N.J. Eq. 494

DecidedJanuary 15, 1832

StatusPublished

This text of 1 N.J. Eq. 494 (Smith v. Axtell) is published on Counsel Stack Legal Research, covering New Jersey Court of Chancery primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Smith v. Axtell, 1 N.J. Eq. 494 (N.J. Ct. App. 1832).

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Opinion

The ChancelloR.

There does not appear to have been any additional testimony taken after filing this answer, and some important facts are not adverted to at all in the testimony taken ex-parte under the original order, and which has been used by both parties on the argument of the cause. The case comes up under very embarrassing circumstances, and in such a way as to render it impossible for the court to make a final disposition of it, and at the same time satisfy itself, or do justice between the parties. There are, however, one or two questions which may be as well disposed of at this as any other stage of the cause.

The first is, whether the agreement set out in the complainant’s bill, and upon which his suit is founded, has been sufficiently and legally proved. It is contended by the defendants that it has not.

The bill mentions a written agreement, of the date of February 28th, 1824 ; and although it would seem as if it was intended to give only the substance and effect, and not the tenor of it, it is nevertheless set out in hcec verba : “ This article of agreement, made,” &c. It turns out from the evidence, that the original article was not produced before the master, but only a paper purporting to be a copy of it; and that upon the ground of the loss of the instrument, parol evidence of its contents, and also a paper purporting to be a copy, was received. It is contended, in the first place, that parol evidence of the contents of the paper, or anyr other secondary evidence, cannot be received, inasmuch as the bill goes upon the original agreement, and does not allege the loss of it, so as to admit of any evidence in lieu of the original article. This is technically correct. The bill should be framed to meet the case, so that the allegata and the probata may agree, with reasonable certainty. And it is as important [498]*498that this rule should be adhered to substantially in this court, as in a court of law. I am not, however, inclined to say that for this reason the testimony must be rejected, and the party turned out of court; for the pleadings may be amended, if necessary, and the object of the parties, as I understand it, is to get at the merits of the case.

Passing by this formal objection, the question before the court is, whether a proper foundation has been laid for the admission of secondary evidence. The allegation is, that the original is lost. If this be true, and due diligence has been used to recover it, but without effect, a copy may be received ; or if there be no copy, the party may resort to parol proof of the contents of the instrument. It is agreed on all hands that there was an original agreement relating to the subject matter of this controversy. It was entered into in February, 1824, by Henry Axtell, Charles Roff, John Axtell, and Samuel L. Axtell. It was before the arbitrators, as appears by the testimony of Jesse Upson, esquire, and was not disputed by any of the parties. The complainant is called to prove the loss, and for this purpose he is competent. He says, the paper was in his possession a considerable time, and he left it with the arbitrators when they first met, since which he has not seen it. He has often searched for it, but could not find it. He has searched for it among his own papers, and among the papers of the deceased, and wherever he supposed it probable it might be found, but could not find it, and believes it lost or destroyed. Jesse Upson, one of the arbitrators, states that the original paper was before them, but he does not know what has become of it. Besides this, I do not discover any evidence of the loss of the paper; and although in this case I should be inclined rather to relax than to adhere strictly to the rule, I feel satisfied that this is altogether too indefinite to warrant the introduction of parol or secondary evidence. The complainant’s testifying that he has searched for it among his papers, and the papers of the deceased, is not sufficient. He had before stated that he left it with the arbitrators, and had not seen it since. The search he made must have been merely for the sake of form, and not with any view of finding the instrument. It was left with the arbitrators, and it is remarkable that not one of them [499]*499has been called on with the view of ascertaining whether it was in their possession. Jesse Upson, it is true, was examined as a witness. He says he has never seen the original paper or agreement since the meeting of the arbitrators, and does not know what has become of it. Now this may be, and yet the paper be in his possession. He does not say that he has ever been called on to examine his papers, or that he has ever searched for it. The fact that he has not seen it, or does not know what has become of it, is no proof that it is not in his possession. The other two arbitrators with whom the paper was left, and in whose hands it is last traced, were not examined, nor does it appear that they have ever been called on, or that any inquiry has been made of them respecting it. It was attempted to be shown on the argument, that Jesse Upson was the active arbitrator, or the business man among them ; and it was argued, that if he had not the instrument, it was scarcely supposable that either of the other arbitrators had. This is argument merely ; for it does not appear that Judge Upson was the active man ; we may presume so from our private knowledge of his business habits and of the general estimation in which he was held, but that furnishes no ground for a judicial opinion. It is shown, however, that even as it regards Judge Upson, the evidence is insufficient. It does not prove that the paper is not in his possession, and therefore the argument itself is unsound. Nor is the case aided by the complainant’s stating he had searched for it wherever he supposed it probable it might be found. He should have stated where he searched, that the court might judge whether it was in good faith. If such general allegations were admitted, it would super-cede the necessity of pointing out any particular places, and a salutary rule of law would be easily evaded, if not wholly destroyed.

The conclusion is, that there is no sufficient foundation for admitting secondary evidence, whether it be a copy or parol. In this case, the paper produced as a copy cannot be considered as such. It has not been compared. The witnesses who state it to be a copy, speak only from their recollection of the original, and not from any actual knowledge. But if it were an actual compared copy, it would not alter the case. It would be secondary [500]*500evidence still, and inadmissible without first satisfactorily showing the loss of the original, which has not been done.

Notwithstanding this conclusion, I am unwilling to preclude the rights of the complainant and dismiss his bill. I incline to think he has equity in his case, if it can be reached. If the agreement is proved to be such as is set out in the bill, I see no good reason why it should not be enforced. That the administrators have been changed, does not present any serious difficulty to my mind. The object of the agreement was to enable the administrators to satisfy the debts and exonerate the land, ft was made in good faith, and was equitable in itself, and justice requires that it should be carried into execution, if properly proved.

The court would recommend that the parties consent to the further taking of testimony respecting the loss of the paper, and that the defendants also produce evidence to the fact alleged by them, that the administrator has sold land of which he has made no account. This is important to settle the rights of the parties.

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The ChancelloR.

There does not appear to have been any additional testimony taken after filing this answer, and some important facts are not adverted to at all in the testimony taken ex-parte under the original order, and which has been used by both parties on the argument of the cause. The case comes up under very embarrassing circumstances, and in such a way as to render it impossible for the court to make a final disposition of it, and at the same time satisfy itself, or do justice between the parties. There are, however, one or two questions which may be as well disposed of at this as any other stage of the cause.

The first is, whether the agreement set out in the complainant’s bill, and upon which his suit is founded, has been sufficiently and legally proved. It is contended by the defendants that it has not.

The bill mentions a written agreement, of the date of February 28th, 1824 ; and although it would seem as if it was intended to give only the substance and effect, and not the tenor of it, it is nevertheless set out in hcec verba : “ This article of agreement, made,” &c. It turns out from the evidence, that the original article was not produced before the master, but only a paper purporting to be a copy of it; and that upon the ground of the loss of the instrument, parol evidence of its contents, and also a paper purporting to be a copy, was received. It is contended, in the first place, that parol evidence of the contents of the paper, or anyr other secondary evidence, cannot be received, inasmuch as the bill goes upon the original agreement, and does not allege the loss of it, so as to admit of any evidence in lieu of the original article. This is technically correct. The bill should be framed to meet the case, so that the allegata and the probata may agree, with reasonable certainty. And it is as important [498]*498that this rule should be adhered to substantially in this court, as in a court of law. I am not, however, inclined to say that for this reason the testimony must be rejected, and the party turned out of court; for the pleadings may be amended, if necessary, and the object of the parties, as I understand it, is to get at the merits of the case.

Passing by this formal objection, the question before the court is, whether a proper foundation has been laid for the admission of secondary evidence. The allegation is, that the original is lost. If this be true, and due diligence has been used to recover it, but without effect, a copy may be received ; or if there be no copy, the party may resort to parol proof of the contents of the instrument. It is agreed on all hands that there was an original agreement relating to the subject matter of this controversy. It was entered into in February, 1824, by Henry Axtell, Charles Roff, John Axtell, and Samuel L. Axtell. It was before the arbitrators, as appears by the testimony of Jesse Upson, esquire, and was not disputed by any of the parties. The complainant is called to prove the loss, and for this purpose he is competent. He says, the paper was in his possession a considerable time, and he left it with the arbitrators when they first met, since which he has not seen it. He has often searched for it, but could not find it. He has searched for it among his own papers, and among the papers of the deceased, and wherever he supposed it probable it might be found, but could not find it, and believes it lost or destroyed. Jesse Upson, one of the arbitrators, states that the original paper was before them, but he does not know what has become of it. Besides this, I do not discover any evidence of the loss of the paper; and although in this case I should be inclined rather to relax than to adhere strictly to the rule, I feel satisfied that this is altogether too indefinite to warrant the introduction of parol or secondary evidence. The complainant’s testifying that he has searched for it among his papers, and the papers of the deceased, is not sufficient. He had before stated that he left it with the arbitrators, and had not seen it since. The search he made must have been merely for the sake of form, and not with any view of finding the instrument. It was left with the arbitrators, and it is remarkable that not one of them [499]*499has been called on with the view of ascertaining whether it was in their possession. Jesse Upson, it is true, was examined as a witness. He says he has never seen the original paper or agreement since the meeting of the arbitrators, and does not know what has become of it. Now this may be, and yet the paper be in his possession. He does not say that he has ever been called on to examine his papers, or that he has ever searched for it. The fact that he has not seen it, or does not know what has become of it, is no proof that it is not in his possession. The other two arbitrators with whom the paper was left, and in whose hands it is last traced, were not examined, nor does it appear that they have ever been called on, or that any inquiry has been made of them respecting it. It was attempted to be shown on the argument, that Jesse Upson was the active arbitrator, or the business man among them ; and it was argued, that if he had not the instrument, it was scarcely supposable that either of the other arbitrators had. This is argument merely ; for it does not appear that Judge Upson was the active man ; we may presume so from our private knowledge of his business habits and of the general estimation in which he was held, but that furnishes no ground for a judicial opinion. It is shown, however, that even as it regards Judge Upson, the evidence is insufficient. It does not prove that the paper is not in his possession, and therefore the argument itself is unsound. Nor is the case aided by the complainant’s stating he had searched for it wherever he supposed it probable it might be found. He should have stated where he searched, that the court might judge whether it was in good faith. If such general allegations were admitted, it would super-cede the necessity of pointing out any particular places, and a salutary rule of law would be easily evaded, if not wholly destroyed.

The conclusion is, that there is no sufficient foundation for admitting secondary evidence, whether it be a copy or parol. In this case, the paper produced as a copy cannot be considered as such. It has not been compared. The witnesses who state it to be a copy, speak only from their recollection of the original, and not from any actual knowledge. But if it were an actual compared copy, it would not alter the case. It would be secondary [500]*500evidence still, and inadmissible without first satisfactorily showing the loss of the original, which has not been done.

Notwithstanding this conclusion, I am unwilling to preclude the rights of the complainant and dismiss his bill. I incline to think he has equity in his case, if it can be reached. If the agreement is proved to be such as is set out in the bill, I see no good reason why it should not be enforced. That the administrators have been changed, does not present any serious difficulty to my mind. The object of the agreement was to enable the administrators to satisfy the debts and exonerate the land, ft was made in good faith, and was equitable in itself, and justice requires that it should be carried into execution, if properly proved.

The court would recommend that the parties consent to the further taking of testimony respecting the loss of the paper, and that the defendants also produce evidence to the fact alleged by them, that the administrator has sold land of which he has made no account. This is important to settle the rights of the parties. This cause has been conducted with considerable irregularity and tardiness; but as the course pursued has been consented to by both parties to reach a proper result, and to have the cause settled on the merits ; and as the defendants have been let in to answer after default, and after testimony taken against them, the hope is indulged that the course intimated by the court will be adopted. If it should not, I will listen to an application on the part of the complainant for leave to take further testimony, and be inclined to grant him such aid as may be consistent with the rules and practice of the court.

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Bluebook (online)

1 N.J. Eq. 494, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-axtell-njch-1832.