Trundle v. Williams

4 Gill 313

• Court: Court of Appeals of Maryland
• Decided: December 15, 1846
• Status: Published

Opinion

Dorsey, J.,

delivered the opinion of this court.

The cause of action, in this case, was a note of hand or single bill, for $1000, drawn by the appellants in favor of Over-ton Williams, the nominal plaintiff, by whom, in about one month after its date, it was assigned to John M. Williams, the cestui que use. To the declaration of the plaintiff below, the defendants pleaded specially, certain payments, specifying dates and amounts, which they alleged they had made to John M. Williams, on account of the single bill, long after its assignment to him. These payments being distinctly put in issue in the pleadings in the cause, on the trial, the plaintiff having given in evidence to the jury the note with the assignment thereon, the defendants gave in evidence the receipts of John M. Williams for the disputed payments: which receipts stated the payments, for which they were given, to have been made on account of a note assigned by Overton Williams to John M. Williams. The plaintiff, then, without producing the nóte; or accounting for its non-production; or laying any foundation for the introduction of secondary evidence in proof of its contents; offered oral testimony to prove, that the defendants, at the time they gave the note already in evidence, had given to Overton Williams another note for the payment of money. The object of which oral testimony was to induce the jury to believe, that the disputed payments, insisted on in the defendants’ plea, rvcre made on the latter note; and not that on which the present action was instituted. To the admissibility of this oral evidence the defendants objected; but the county court overruled the objection, and permitted the testimony to go to the jury. In doing so we think the court were in error. The best evidence, of the existence, character, and contents, of a written instrument, is the instrument itself. Whether there were two notes, for the payment of money, given by the defendants to Overton Williams, is a question, which ought to be determined, by the production of the notes. As administrator of Overton Williams, and cestui que use in this cause, they are presumed to be in the possession of John M. Williams, and for their non-production, he has shewn no cause. If the note, of which oral testimony was offered, had been paid up, and delivered to the defendants, proof thereof should have been adduced; and a notice, to produce it at the trial, served upon the defendants. Of the hardship of his case, in this respect, the plaintiff had no cause to complain. He was not taken by surprise. The necessity of producing the testimony he offered, was not for the first time made known to him ■by the evidence on the part of the defendants. The payments, asserted in the pleadings of the defendants, were made to him; ■he of course knew to what note or account they were intended to be applied; and to have come prepared, with competent .testimony, to resist the defence set up against him, was his .most obvious duty.

The judgment of the county court is reversed, and e.procedendo awarded.

JUDGMENT REVERSED.