Burlington Lumber Co. v. Whitebreast Coal & Mining Co.
| Decision Date | 04 June 1885 |
| Citation | 23 N.W. 674,66 Iowa 292 |
| Parties | THE BURLINGTON LUMBER CO. v. THE WHITEBREAST COAL & MINING CO |
| Court | Iowa Supreme Court |
Appeal from Lucas District Court.
ACTION in chancery to enforce a mechanic's lien for the value of lumber furnished by plaintiff, and used by defendants in the construction of mining shafts. A judgment was had for plaintiffs, but the abstract does not show that it was made a lien on defendant's lands. Defendant appeals.
AFFIRMED.
Mitchell & Penick and McNett & Tisdale, for appellant.
Stuart Bros., for appellee.
I. The defendant in its answer admits the purchase of the lumber but denies that it was used for the purpose charged in the petition, and, by way of a counterclaim, seeks to recover against plaintiff damages for the violation of a contract alleged to have been entered into between defendant and plaintiff, whereby plaintiff undertook to furnish to defendant timber "as fast as it could be sawed and loaded on the cars." The cause is triable here de novo.
II. The defendant, to establish the terms of the contract as to the time of its performance, (the breach of these terms is the ground of the counter-claim,) relies upon a letter of defendant to plaintiff ordering the timber which states these terms, and an acceptance of the order by plaintiff. In the view we take of the case, this letter of defendant's became an important--a decisive item of evidence. The terms of the contract as to time of performance, alleged by defendant, are denied by plaintiff. If they did not agree, by accepting the order sent by the letter, to furnish the timber "as fast as it could be sawed and loaded on the cars," defendant cannot recover upon its counter-claim. In order to prove the contents of the letter, for it was not produced, defendant introduced in evidence a letter-press copy thereof, but failed to prove notice to plaintiff to produce the letter. Counsel claim that a letter-press copy is admissible as prima facie evidence of the contents of a letter, after notice to the party to the suit to whom it was addressed to produce it, and cites 1 Greenl. Ev., § 116, in support of this position. It is not necessary for us to determine the effect of the letter-press copy, as it or any other secondary written evidence cannot be admitted except after notice to the party to the suit having its custody to produce it at the trial.
The rule requiring notice to the party, holding their custody for the production of the documents which the other party desires to introduce in evidence, is admitted by counsel, but they insist that there is an exception thereto when the party upon whom notice should be served admits the loss or destruction of the documents. The position of counsel is based upon their view of the reason for the rule, which is that the notice is required in order to enable the party holding a document to make search for it, and produce it. They conclude that, if its loss or destruction be admitted, the reason of the rule ceasing, the rule itself is not applicable to such a...
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