Bullis v. Easton

• Decision Date: 14 December 1895
• Citation: 65 N.W. 395,96 Iowa 513
• Parties: L. BULLIS v. J. H. EASTON, Appellant
• Court: Iowa Supreme Court

65 N.W. 395

96 Iowa 513

L. BULLIS v. J. H. EASTON, Appellant

Supreme Court of Iowa, Des Moines

December 14, 1895

Appeal from Winneshiek District Court.--HON. W. A. HOYT, Judge.

Action at law to recover attorney's fees. The defendant in answer denied the claim, and further pleaded that he retained plaintiff in certain litigation which he contemplated having with his wife; that, at about the time of the commencement of this litigation, plaintiff, in violation of his duties as an attorney, made various statements derogatory of defendant's case, and encouraged and induced his (defendant's) wife to make a defense to the action which defendant had brought against her; that these matters came to the knowledge of defendant, and, believing that plaintiff was acting in bad faith and had repudiated his contract, he did not call plaintiff into the trial of the action. By way of counterclaim, the defendant averred that he had paid the plaintiff two hundred and fifty dollars as a retainer fee but that by reason of his conduct aforesaid there has been an entire failure of consideration; that he was compelled to and did pay out large sums of money in his litigation with his wife by reason of the conduct of the plaintiff; and that he had been damaged by reason of these matters in the sum of four hundred dollars. The case was tried to a jury, which returned a verdict for plaintiff in the sum of two hundred and two dollars, on which judgment was rendered, and defendant appeals.-- Reversed.

Reversed.

Willett & Willett and Dan Shea for appellant.

L Bullis pro se.

OPINION

Deemer, J.

The deposition of defendant's wife, from whom he had been divorced in the litigation out of which this suit arose, was taken in the city of New York, at which place she at the time resided. In this deposition she testified to having received a paper containing a published notice of the divorce suit brought by her husband against her; that she clipped this notice from the paper, and sent it to the plaintiff, with the request that he act as her attorney; that in response thereto she received two letters from the plaintiff, which she then had in her possession. She was then asked to produce the letters, and have them attached to her deposition. This she refused to do. She was then asked to produce them, that they might be copied by the commissioner. This she did, and duly-certified copies were made, attached to and made a part of the deposition, by the commissioner. Shortly after the deposition was returned and filed in the district court of Winneshiek county, the plaintiff filed written objections to the copies of the two letters attached to the deposition on the ground "that the same are incompetent and irrelevant, for that the same are not the best evidence, and the original letters are shown to exist." This objection was sustained by the court, and defendant assigns error on the ruling. It is further shown by the record that these same letters were attached to a deposition taken in the main action that defendant brought against his wife, and were used in the trial of that case. And it also appears that by agreement of the parties these depositions, with the letters, were removed from the files by defendant's wife, and taken to New York, where she then resided. As we have already seen, Mrs. Easton, in whose possession these letters were, refused to produce them for use upon this trial. It also appears that the evidence in the main case of Easton v. Easton was abstracted by one G. R. Willett for an appeal to this court, and copies were made of these letters written by plaintiff to Mrs. Easton. The defendant produced G. R. Willett as a witness on this trial, and after showing these facts, and proving that he had made exact copies of the letters, offered these copies in evidence; and they were "objected to by plaintiff as not being the best evidence, and incompetent, the originals being shown to exist." The objection was sustained, and exception taken. These rulings present the first question made in argument by appellant's attorneys.

It is clearly shown that the letters belonged to Mrs. Easton, were in her possession and under her control in New York City, and that she refused to produce them to be attached to her deposition. She did, however, present them, for copies thereof to be made, which were attached to her deposition by the commissioner. It thus appears that defendant did all he could to secure the originals, and we think that, under well-settled rules of law, secondary evidence of the contents of these letters was admissible. The rule, as stated by Mr Best in his work on Evidence (volume 2, section 482), is as follows: "It has already been stated that, when the absence of the primary source of evidence has been accounted for, secondary evidence is receivable. The excuses which the law allows for dispensing with primary evidence are that the document has been lost or destroyed, or that it is in the possession of the adversary, who does not produce it after due notice calling him to do so, or in that of a party privileged to withhold it, who insists on his privilege, or who is out of the jurisdiction of the court, and consequently cannot be compelled to produce it." The same rule is recognized by Prof. Greenleaf in his work on Evidence (volume 1, 15th Ed., sections 84, 572), and is sustained by the following, among other, authorities: Electric Co. v. Palmer (Minn.) 53 N.W. 1137; Manning v. Maroney (Ala.) (6 So. 343); Knickerbocker v. Wilcox (Mich.) (47 N.W. 123); Miles v. Stevens (Mass.) (8 N.E. 426; Roberts v. Dixon (Kan.) (31 P. 1083); U. S. v. Reyburn, 6 Peters 352; Burton v. Driggs, 20 Wall. 125, 22 L.Ed. 299; Fisher v. Greene, 95 Ill. 94, 99; Bradner, Ev., p. 127, section 16. The identity of the letters was sufficiently established--First, by the statement of Mrs. Easton that she received them in answer to letters written by her to the plaintiff with reference to the business to which they re...