Fisher v. Carter

• Decision Date: 24 November 1916
• Docket Number: No. 31187.,31187.
• Citation: 160 N.W. 15,178 Iowa 636
• Court: Iowa Supreme Court
• Parties: FISHER & BALL v. CARTER.

178 Iowa 636

160 N.W. 15

FISHER & BALL

v.CARTER.

No. 31187.

Supreme Court of Iowa.

Nov. 24, 1916.

Appeal from District Court, Jefferson County; Seneca Cornell, Judge.

Action for commission alleged to have been earned in finding a purchaser for land resulted in a judgment as prayed. Affirmed.Ralph H. Munro, of Fairfield, for appellant.

Thoma & Thoma and Leggett & McKemey, all of Fairfield, for appellee.

LADD, J.

[1][2] The petition is in two counts, one alleging the employment of plaintiffs by defendant to find a purchaser for his farm in Kansas, and the reasonable value of so doing, and the other alleging an agreement to pay $1 per acre for such services. Counsel for appellant contends that there was no evidence tending to support the first count, and therefore that the court erred in submitting whether plaintiffs should recover on a quantum meruit to the jury. Fisher testified that defendant first came into the office of Ball and Fisher in the spring and requested him to find “a buyer in exchange” for his Kansas land, that he kept looking up proposals for exchange and examining real estate bulletins for some time, and finally suggested an exchange for land advertised by one Henten near Ridgway, Mo., and that defendant, Carter, with his assistance finally exchanged his Kansas farm for this land. He also testified that Carter and he agreed that in event of an exchange the former was to pay plaintiff firm $1 per acre as commission. Carter denied ever having employed the firm or either member of it to negotiate an exchange or having agreed to the payment of any sum per acre or otherwise as commission. Evidently, then, the jury might have found the employment and the rendition of services as testified by Fisher, but have concluded that there was no agreement as to the amount to be paid as commission, and, if so, they must have allowed the reasonable value of the services rendered. It cannot be said, then, that there was no evidence in support of the first count, nor that evidence of the reasonable value of the services rendered was inadmissible.

[3][4] II. Henten, with whom defendant exchanged farms, resided at Albany, Mo. Fisher testified to having written Henten a letter and to have deposited it in the United States mails properly addressed to him at Albany, Mo., and that he did not have the original or know its whereabouts, and then identified a copy, unsigned, as a true copy of such letter. The copy was received in evidence over an objection that there was no sufficient excuse shown for not producing the original, and in any event that the letter was unsigned. Even though unsigned, and frequently the signature is not impressed on the copy, the witness testified that he wrote the original and mailed it, and this sufficiently identified it as his, even though not signed. Was the absence of the original sufficiently accounted for? That the best evidence of which the case is susceptible must have been adduced is the well-established rule, and our inquiry is limited to ascertaining whether a copy of a letter is to be regarded as such evidence upon a showing that the original is in the hands of a third party beyond the jurisdiction of the court. In Bullis v. Easton, 96 Iowa, 513, 65 N. W. 395, and Simons v. Petersberger, 171 Iowa, 564, 151 N. W. 392, the showing was that the originals could not be obtained and secondary evidence of their contents held rightly received; and in Waite v. High, 96 Iowa, 742, 65 N. W. 397, a remark is to be found that:

“It does not follow that, because the books were in another state, their production at the trial could not have been secured.”

In Worez v. Railway, 156 N. W. 867, the witness prepared an application for insurance and a duplicate thereof at the same time, writing on each, “acute attacks of rheumatism at times, but not severe.” One of these was signed by the applicant and forwarded to the company in New York, and the other retained by the witness, and was received in evidence in connection with his testimony of applicant's condition at that time. As this was a duplicate of that sent out of the state, either was admissible as an original, and especially is this true with respect to the memoranda made by the witness. Hopkins v. State, 52 Fla. 39, 42 South. 52;Fremont Canning Co. v. Railway Co., 180 Mich. 283, 146 N. W. 678;State v. Albertalli, 78 N. J. Law, 90, 73 Atl. 128;Chesapeake Ry. Co. v. Stock, 104 Va. 97, 51 S. E. 161.

Manifestly the fact that the signed application was beyond the state boundaries would not preclude the introduction of the duplicate copy, and this is all that is held, though the language of the opinion might, but for the recital of facts, be susceptible of broader construction. The authorities bearing on the question seem to be in hopeless conflict. On the one hand letters or other written papers or documents in the possession of a third party in another state or country are regarded as inaccessible for that their production cannot be compelled by the court where the action is pending. Bowden v. Achor, 95 Ga. 243, 22 S. E. 254;Zellerbach v. Allenberg, 99 Cal. 57, 33 Pac. 786;Hoyle v. Mann, 144 Ala. 516, 41 South. 835;Butler v. Mail & Express Pub. Co., 171 N. Y. 208, 63 N. E. 951;Vinal v. Gilman, 21 W. Va. 301, 45 Am. Rep. 562.

The Supreme Court of the United States declared, speaking through Swayne, J., in Burton v. Driggs, 20 Wall. 125, 22 L. Ed. 299, that:

“It is well settled that if books or papers necessary as evidence in a court in one state be in the possession of a person living in another state, secondary evidence, without further showing, may be given to prove the contents of such papers, and notice to produce them is unnecessary.”

A deposition of a witness in another state had been shown to have been lost, and a copy made by the clerk of court was adjudged rightly received in evidence. The witness, not the deposition, was beyond the court's jurisdiction, and the above excerpt from the opinion was dictum. Moreover, that court had previously ruled in Turner v. Yates, 16 How. 14, 14 L. Ed. 824, that:

“If the paper was in the hands of the consignees in London, secondary evidence was not admissible. * * * If as parties, they were entitled to notice to produce the paper; if as third persons, their depositions should have been taken, or some proper attempt made to obtain it.”

The rule as indicated in this statement obtains in many jurisdictions. Shaw v. Mason, 10 Kan. 184;McDonald v. Erbes, 231 Ill. 295, 83 N. E. 162;Wiseman v. Railway Co., 20 Or. 425, 26 Pac. 272, 23 Am. St. Rep. 136;Kirchner v. Laughlin, 6 N. M. 300, 28 Pac. 505;Justice v. Luther, 94 N. C. 793;Pringey v. Guss, 16 Okl. 82, 86 Pac. 292, 8 Ann. Cas. 412;Bruger v. Insurance Co., 129 Wis. 281, 109 N. W. 95;Wood v. Cullen, 13 Minn. 394 (Gil. 365); Kearney v. Mayor, etc., N. Y., 92 N. Y. 617.

[5] Secondary evidence of the contents of a writing is received as the best evidence obtainable only upon showing that the original writing cannot be produced by the party offering such evidence within a reasonable time by the exercise of reasonable diligence. Precisely what must be done to constitute such diligence depends on the facts of each case.

[6] There is no...