Coonrod v. Madden

• Decision Date: 25 November 1890
• Docket Number: 14,609
• Citation: 25 N.E. 1102,126 Ind. 197
• Parties: Coonrod v. Madden
• Court: Indiana Supreme Court

25 N.E. 1102

126 Ind. 197

Coonrod v. Madden

No. 14,609

Supreme Court of Indiana

November 25, 1890

From the Knox Circuit Court.

Judgment affirmed.

G. G Reily, for appellant.

T. R Cobb and O. H. Cobb, for appellee.

OPINION

Coffey, J.

This was a suit by the appellee against the appellant upon a promissory note. Answer: Payment. Reply: General denial. Trial by the court; finding and judgment for the appellee, over a motion for a new trial, for the full amount of the note, with reasonable attorney's fee. The assignment of error calls in question the propriety of the ruling of the circuit court in overruling the motion for a new trial.

No brief is filed in the cause on behalf of the appellee, and by reason of that fact we are not informed as to the ground upon which the court made its several rulings in his favor.

On the trial of the cause the appellant introduced and read in evidence a certain check executed by him to the appellee, and also testified that such check was given and received in part payment of the note in suit.

The appellee, over the objection of the appellant, was permitted by the court to testify that the check was received by him in part payment of another and different note from the one in suit, giving the date and amount of said note, and its rate of interest. He also testified that the appellant had paid the note to him in full, and that it had been surrendered to the appellant.

The objection to this evidence, stated by the appellant to the court at the time of its introduction, was that it was secondary, and that the appellee could not give evidence of the contents of such note without first proving its loss, or serving notice upon the appellant to produce it in court to be used as evidence in the cause.

It is undoubtedly the general rule that before parol evidence can be received of the contents of a written instrument, it must be shown that such instrument is lost or destroyed, or that such instrument is in the hands of the party against whom the evidence is offered, and that upon proper notice so to do he has failed to produce the original in court to be read in evidence. Smith v. Reed, 7 Ind. 242; Mumford v. Thomas, 10 Ind. 167; Manson v. Blair, 15 Ind. 242; Anderson, etc., Co. v. Applegate, 13 Ind. 339; Frazee v. State, 58 Ind. 8; McMakin v. Weston, 64 Ind. 270.

But there is a well defined and well established exception to this general rule. The general rule has no application where the written instrument is merely collateral to the issue; as where the parol evidence relates to matters distinct from the instrument of writing, although the same fact could be proved or disproved by the writing. Wood Practice Evidence, p. 4.

In the case of Daniel v. Johnson, 29 Ga. 207, it was held that payment might be proved by parol to have been made in promissory notes, without the production of the notes. The rule is that where the parol evidence is as near the thing to which the witness testifies as the written evidence, then each is primary. Wharton Law of Evidence, section 77.

The case of Hewitt v. State, 121 Ind. 245, 23 N.E. 83, is...