The opinion of the Court was drawn up by
Tenney, C. J.
This action is for the recovery of damages for the alleged breach of the promise of the defendant to marry the plaintiff. It was proved that letters were written and sent by him to her, one of which was dated in 1848, and all the others were previous to that time. It did not appear that he had visited her subsequent to 1849, and in 1854 she destroyed his letters. At the trial, she offered the secondary evidence of the contents of these letters, which was objected to by the defendant, but received after evidence was introduced to show the circumstances under which the letters were destroyed, which last evidence was received also, subject to objection.
Was the secondary evidence of the contents of the letters competent ? It is a general rule that, the best evidence, the thing is capable of, must be produced. The existence and contents of written evidence must be proved by its production, in order that the Court may determine its legal operation; to show that it is genuine, and that it is not made upon condition. Legfield's case, 10 Co. Rep. 88 to 96; Gilb. Law of Ev. 93. Exceptions to this rule were formerly confined to [343]*343a few extreme cases, such as burning of houses, robbing, or some unavoidable accident which caused the loss or destruction of the written evidence.
This rule was anciently enforced in practice with great strictness, but it has been much relaxed and extended in modern times from necessity, to prevent injustice.
In Reed v. Brookman, 3 T. Rep. 151, a declaration on a deed was sustained, and the proferí dispensed with upon the general allegation of a loss by time and accident. In Beckford v. Jackson, 1 Esp. 337, the plaintiff counted on a deed lost or mislaid, upon which issue was taken, and the same was recognized as authorized by law, by Lord Kenyon, who sat in the trial.
It may be stated as the doctrine of the law in this State, at the present day, supported by numerous decisions and general practice, that the contents of a writing, which is itself admissible, may be shown by secondary evidence, on proof of its destruction, and of its loss, after a careful and thorough search has been made in all places where there is reason to suppose that it may be found, (1 Stark. Ev. 349, note 1.) unless the proof required is necessarily in writing, under all circumstances.
But, in the case before us, the proof that the letters of the defendant were destroyed by the plaintiff intentionally, being incontrovertible, can their contents be proved by oral testimony ?
It is not insisted in behalf of the plaintiff, that a fraudulent destruction of the writing sought to be proved by parol evidence, by the party offering it, is any foundation for the introduction. Such a doctrine would allow one to take advantage of his own wrong, and would be dangerous in its consequences, especially, when the party causing the destruction can be witness in his own behalf. And, when the document has been destroyed by the party moving to prove its contents, the burthen is upon him to show, affirmatively, circumstances, which negative the fraudulent design. Blade v. Noland, 12 Wend. 173.
[344]*344In the absence of fraud, can the destruction by the owner, be distinguished in principle, from that of any other accident or mistake ? If a bond or promissory note of hand, should be destroyed by the holder, through an erroneous belief, that it was actually paid, or in consequence of the notorious insolvency of the debtor, will this preclude a recovery in an action upon full proof by secondary evidence, that it was really outstanding and in full force ?
When the plaintiff was induced to suppose that her letters from the defendant would not be used, in a trial of a suit against him, in her favor, and she yielded to the advice of a sister, in whom she had reposed unlimited confidence, that it would be desirable that they should not be exposed to the perusal of'those, who would read them, in her opinion, to gratify a feeling of curiosity, unmingled with any sympathy for her; perhaps, too, from a wish not to be reminded, by their existence, of what she, at the time of their receipt, regarded as a pledge of affection, followed by the unwilling conviction, from his coldness at least, so wounding to her sensibility, that a change had taken place in him in regard to herself, or that he was always untrue, can it be said that this is a case so unlike that when a loss of writings has occurred by accident or mistake, that the contents of such letters cannot be shown by oral testimony, when they have been destroyed ? May not her acts, in committing them to the fire, be treated as a misapprehension, an accident, a mistake ?
Rawley v. Ball, 3 Cowen, 302, was an action on a promissory note of hand, which was shown to have been lost, though after it became payable. It was held, that an action at law could not be maintained, the plaintiff’s only remedy being in equity. It was so held by the Court, without provng tne destruction of the note; implying, if the note was shown to be destroyed, secondary evidence of its contents would be .admissible.
Hughes v. Wheeler, 8 Cowen, 77, was an action on a promissory note of hand; the writ also contained the money counts. [345]*345It was defended on the ground, that more than the legal rate of interest was embraced therein. On its being shown that the consideration of the note, was a former note free from usurious taint, and which was destroyed by the consent of both parties, it was held that the action might be maintained upon the former note, under the money counts. Southerland, J., who delivered the opinion of the Court, remarked, “ it is then, in principle, the common case of money had and received, &c., supported by proof of a promissory note, which is shown to have been destroyed by accident or misapprehension, or in any other manner, which does not amount to a legal discharge and satisfaction of it.”
In Livingston v. Rogers, 2 Johns. Cases, 488, a letter of attorney was executed and delivered by the plaintiff to one McEvers, to transfer certain stocks on a condition to be performed by the other party. The attorney having failed to make the transfer, through the alleged omission to fulfill the condition as required by the contract, put the letter of attorney in his iron chest, of which he alone had the key; he never delivered it to the plaintiff, who did not have or see it after the attempt to execute the service, confided to him. It appeared that he searched for the same in his chest and elsewhere, without success, and he verily believed the same to be destroyed, not thinking it of any utility to be preserved. Parol evidence of its contents was offered by the plaintiff and rejected by the Court, on the defendant’s objection, and a verdict was taken for the defendant, and judgment rendered thereon. The case was afterwards brought by a writ of error into the Court of errors.
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The opinion of the Court was drawn up by
Tenney, C. J.
This action is for the recovery of damages for the alleged breach of the promise of the defendant to marry the plaintiff. It was proved that letters were written and sent by him to her, one of which was dated in 1848, and all the others were previous to that time. It did not appear that he had visited her subsequent to 1849, and in 1854 she destroyed his letters. At the trial, she offered the secondary evidence of the contents of these letters, which was objected to by the defendant, but received after evidence was introduced to show the circumstances under which the letters were destroyed, which last evidence was received also, subject to objection.
Was the secondary evidence of the contents of the letters competent ? It is a general rule that, the best evidence, the thing is capable of, must be produced. The existence and contents of written evidence must be proved by its production, in order that the Court may determine its legal operation; to show that it is genuine, and that it is not made upon condition. Legfield's case, 10 Co. Rep. 88 to 96; Gilb. Law of Ev. 93. Exceptions to this rule were formerly confined to [343]*343a few extreme cases, such as burning of houses, robbing, or some unavoidable accident which caused the loss or destruction of the written evidence.
This rule was anciently enforced in practice with great strictness, but it has been much relaxed and extended in modern times from necessity, to prevent injustice.
In Reed v. Brookman, 3 T. Rep. 151, a declaration on a deed was sustained, and the proferí dispensed with upon the general allegation of a loss by time and accident. In Beckford v. Jackson, 1 Esp. 337, the plaintiff counted on a deed lost or mislaid, upon which issue was taken, and the same was recognized as authorized by law, by Lord Kenyon, who sat in the trial.
It may be stated as the doctrine of the law in this State, at the present day, supported by numerous decisions and general practice, that the contents of a writing, which is itself admissible, may be shown by secondary evidence, on proof of its destruction, and of its loss, after a careful and thorough search has been made in all places where there is reason to suppose that it may be found, (1 Stark. Ev. 349, note 1.) unless the proof required is necessarily in writing, under all circumstances.
But, in the case before us, the proof that the letters of the defendant were destroyed by the plaintiff intentionally, being incontrovertible, can their contents be proved by oral testimony ?
It is not insisted in behalf of the plaintiff, that a fraudulent destruction of the writing sought to be proved by parol evidence, by the party offering it, is any foundation for the introduction. Such a doctrine would allow one to take advantage of his own wrong, and would be dangerous in its consequences, especially, when the party causing the destruction can be witness in his own behalf. And, when the document has been destroyed by the party moving to prove its contents, the burthen is upon him to show, affirmatively, circumstances, which negative the fraudulent design. Blade v. Noland, 12 Wend. 173.
[344]*344In the absence of fraud, can the destruction by the owner, be distinguished in principle, from that of any other accident or mistake ? If a bond or promissory note of hand, should be destroyed by the holder, through an erroneous belief, that it was actually paid, or in consequence of the notorious insolvency of the debtor, will this preclude a recovery in an action upon full proof by secondary evidence, that it was really outstanding and in full force ?
When the plaintiff was induced to suppose that her letters from the defendant would not be used, in a trial of a suit against him, in her favor, and she yielded to the advice of a sister, in whom she had reposed unlimited confidence, that it would be desirable that they should not be exposed to the perusal of'those, who would read them, in her opinion, to gratify a feeling of curiosity, unmingled with any sympathy for her; perhaps, too, from a wish not to be reminded, by their existence, of what she, at the time of their receipt, regarded as a pledge of affection, followed by the unwilling conviction, from his coldness at least, so wounding to her sensibility, that a change had taken place in him in regard to herself, or that he was always untrue, can it be said that this is a case so unlike that when a loss of writings has occurred by accident or mistake, that the contents of such letters cannot be shown by oral testimony, when they have been destroyed ? May not her acts, in committing them to the fire, be treated as a misapprehension, an accident, a mistake ?
Rawley v. Ball, 3 Cowen, 302, was an action on a promissory note of hand, which was shown to have been lost, though after it became payable. It was held, that an action at law could not be maintained, the plaintiff’s only remedy being in equity. It was so held by the Court, without provng tne destruction of the note; implying, if the note was shown to be destroyed, secondary evidence of its contents would be .admissible.
Hughes v. Wheeler, 8 Cowen, 77, was an action on a promissory note of hand; the writ also contained the money counts. [345]*345It was defended on the ground, that more than the legal rate of interest was embraced therein. On its being shown that the consideration of the note, was a former note free from usurious taint, and which was destroyed by the consent of both parties, it was held that the action might be maintained upon the former note, under the money counts. Southerland, J., who delivered the opinion of the Court, remarked, “ it is then, in principle, the common case of money had and received, &c., supported by proof of a promissory note, which is shown to have been destroyed by accident or misapprehension, or in any other manner, which does not amount to a legal discharge and satisfaction of it.”
In Livingston v. Rogers, 2 Johns. Cases, 488, a letter of attorney was executed and delivered by the plaintiff to one McEvers, to transfer certain stocks on a condition to be performed by the other party. The attorney having failed to make the transfer, through the alleged omission to fulfill the condition as required by the contract, put the letter of attorney in his iron chest, of which he alone had the key; he never delivered it to the plaintiff, who did not have or see it after the attempt to execute the service, confided to him. It appeared that he searched for the same in his chest and elsewhere, without success, and he verily believed the same to be destroyed, not thinking it of any utility to be preserved. Parol evidence of its contents was offered by the plaintiff and rejected by the Court, on the defendant’s objection, and a verdict was taken for the defendant, and judgment rendered thereon. The case was afterwards brought by a writ of error into the Court of errors. Chancellor Lansing was in favor of affirming the judgment, admitting, however, that “since Lord Mansfield began to preside in the Court of King’s Bench, the decisions of English courts have assumed a degree of liberality, in adapting the ancient principles of jurisprudence, not only to the exigencies which the extent and activity of modern commercial speculations have rendered unavailable, but to every object of commutative justice, which can affect the interests of the members of a great and opulent [346]*346community.” But he thought the rule, in this respect, had been completely preserved. It was remarked by Senator Gold, in the same case, that “ experience under the rule, has, in the progressive improvements of English jurisprudence, resulted in a relaxation of the law on this subject. The non-production of instruments is now excused for reasons more general and less specific, upon grounds more broad and liberal than were formerly admitted.” And he was of the opinion that parol evidence of the contents of the power of attorney was admissible. But he said, on the admission of such testimony, should the trial disclose evidence, or reasonable grounds of suspicion, of a suppression of the instrument, or mala jides in the plaintiff, &o., it will be the duty of the Judge to direct and charge the jury for the defendant. A majority of the Court was of the same opinion, and judgment below was reversed.
The decision of the Court of Errors, in the case last cited, was examined in that of Blade v. Noland, 12 Wend. 173, in an action upon a promissory note of hand, in which there was evidence to show that the note was destroyed by the payee and holder, very soon after it was made, whereupon the secondary evidence of its contents was allowed to be introduced, and judgment was rendered for the plaintiff. The case came into the Supreme Court on a writ of error, and the judgment was reversed. Nelson, J., in delivering the opinion of the Court, after remarking that there was nothing in the case accounting for, or affording any explanation of the act, consistent with an honest and justifiable purpose, said, “ such explanation the plaintiff was bound to give affirmatively, for it would be a violation of the principles upon which inferior and secondary evidence is tolerated, to allow a party the benefit of it who has willfully destroyed the higher and better testimony.” “It was said by Chancellor Lansing, after an examination of all the leading cases on the subject, that secondary evidence was not admissible to prove the contents of a paper when the original had been lost by the negligence or laches of the party, or his attorney. He failed to convince [347]*347the Court of Errors to adopt his views in a case where the negligence was not so great, as to create a suspicion of design. Farther than this, I could not consent to extend the rule. I have examined all the cases decided by this Court, where the evidence has been admitted, and, in all of them, the original deed or writing was lost or destroyed by time, mistake or accident, or was in the hands of the adverse party. Where there was evidence of the actual destruction of it, the act was shown to have taken place under circumstances that repelled all inference of fraudulent design.”
We are satisfied, that, notwithstanding the party wishing to avail himself of the contents of a writing, which, if in existence, would be admissible, has destroyed it, yet, if it is satisfactorily shown that the act of destruction was not the result of a fraudulent intent, the case is brought within the exception to the rule of law, and secondary evidence of the contents of the paper is admissible.
Has the plaintiff in this case, by legal evidence, repelled all inference of a fraudulent purpose, in burning the letters received from the defendant ?
It was a question for the Court to determine in the first place, at least, whether the letters had been lost or destroyed. 1 Stark. Ev. 354. And it was alike for the Court to determine from the evidence that their destruction was not the fruit of a dishonest purpose. And, on this point, no question is presented in the exceptions. But, it is contended in behalf of the defendant, that the evidence received to repel the inference of fraud, was inadmissible.
Mrs. Bishop, the sister of the plaintiff, was allowed to testify, that she had possession of the letters written by the defendant to the plaintiff, about twenty in number, at her own house for a long time; but being about to remove from the State, she carried them to her father’s, where she went to make a visit, and that she then advised the plaintiff to destroy them, as, in a prosecution against the defendant, they would not be needed or used in Court, and, under the apprehension of herself and the plaintiff, that they might be mislaid and fall into [348]*348the hands of some one, who, they preferred should not have them, the latter burnt them. This evidence was properly received, as a part of the res gesta, and as explanatory of the motive which influenced the plaintiff in her acts at the same time. 1 Greenl. Ev. § 110.
The plaintiff’s father having testified, that the last time the defendant was at his house was in May, 1849, when he came with his brother and dined there; and the time next before that, when he visited his house, was, according to his best recollection, in January, 1848, was inquired of by the plaintiff’s attorney, if he observed any mental difference in the plaintiff after he left. He was allowed to answer against the defendant’s objection, that, after the defendant had gone, it was witnesses’ impression, that she appeared more melancholy and of less life and animation; and at one time he found her weeping without knowing the cause.
It is very clear, when the proof in a case of this sort, is sufficient to entitle the plaintiff to recover, that anxiety of mind is an element to be considered in the estimation of damages, if produced by the violation of the defendant’s promise. Certain affections of the mind, such as joy and grief, hope and despondency, are often made known to an intimate acquaintance without any verbal communication, by the general appearance and conduct of the party, with entire certainty, when the facts on which conviction is founded, in the mind of an acquaintance, cannot be fully disclosed in language, so as to be understood by a stranger. The shedding of tears is evidence of some unusual condition of the mind. The evidence, in this respect, was such as practice has sanctioned, and is not deemed improper.
Evidence was introduced by the plaintiff for the purpose of showing, that the defendant and his counsel were notified to produce the letters of the.plaintiff to the defendant. One only was produced, and the counsel for the plaintiff were allowed to testify to facts which occurred in Court at a former trial of the case, tending to show, that the letters so called for, were in Court, and the plaintiff’s counsel were [349]*349not allowed to use or inspect them. The letters of the defendant being admissible, and the contents thereof being properly allowed to be proved by parol evidence, the letters of the plaintiff may reasonably be presumed to be necessary to render his letters intelligible in many respects. The letters which passed between the parties are species of written conversation, and that this correspondence may be fully understood, the two parts should be read in connection. If produced, they may have been competent evidence. Being withheld, when the evidence objected to showed that they could have been exhibited to the plaintiff’s counsel, these facts were proper for the consideration of the jury, under the 27th rule of the code of rules prepared by this Court in 1855, (37 Maine, 576,) — “When written evidence is in the hands of the adverse party, no evidence of its contents will be admitted, unless previous notice to produce shall have been given to such adverse party or his attorney, nor will counsel be permitted to comment upon a refusal to produce such evidence, without first proving such notice.”
Sampson Reed testified to his knowledge of the plaintiff from her childhood to the time of the trial; that she was at his house in the winter of 1849, where she remained about ten days and did work there, and, in answer to a question of the plaintiff’s counsel not objected to, stated that she appeared sober and melancholy, and that he saw her in tears a number of times. Upon the foregoing statement, he was asked whether he dismissed the plaintiff from his service, and, if so, for what cause. The witness answered that he dismissed her on account of her want of capacity to do her work. This answer was a subject of objection. The material part of this answer is, that the plaintiff was incapable to do her work, to such a degree that he chose to discharge her for that reason. When this is considered in connection with the former part of his testimony, we think it unobjectionable.
The plaintiff, upon inquiry of her counsel, stated, so far as she recollected, the contents of a letter from the defend[350]*350ant in relation to a thanksgiving ball, which was admitted to have occurred on Nov. 25, 1847. This was allowed, under the ruling that the contents of his letters could be proved by parol, and the objection cannot be sustained.
The ruling of the Judge, allowing two questions to be put to the defendant, on cross-examination, touching a conditional engagement between him and the plaintiff, which were objected to, becomes unimportant, because he stated that he had no recollection of the matter to which the inquiries related; and he could not be prejudiced by the questions alone. But, had his recollection been more perfect, we perceive no valid objection to the questions.
The instructions to the jury, in relation to the plaintiff’s letter to the defendant, dated Eeb. 6, 1848, read in her behalf without objection, were entirely correct. It being evidence, regarded by the defendant as important for him, in making out his defence, it was, of course, a matter of consideration by the jury. The other instructions given were authorized by the 27th rule of this Court, which has been already considered. Exceptions overruled.
Hathawat, Cutting, Mat, Goodenow, and Davis, J. J., concurred.