Gould v. George Trowbridge

• Decision Date: 31 March 1862
• Citation: 32 Mo. 291
• Parties: JOHN P. GOULD et al., Respondents, v. GEORGE TROWBRIDGE et al., Appellants.
• Court: Missouri Supreme Court

32 Mo. 291

JOHN P. GOULD et al., Respondents,

v.GEORGE TROWBRIDGE et al., Appellants.

Supreme Court of Missouri.

March Term, 1862.

Appeal from St. Louis Circuit Court.

H. N. Hart, for appellants.

J. C. Moody, for respondents.

DRYDEN, Judge, delivered the opinion of the court.

The petition in this case alleges, among other things, that one Alexander Powell, at Cincinnati, Ohio, on the 23d of August, 1848, drew his bill of exchange on the defendants, Trowbridge & Priest, and requested them to pay to the firm of Gould, McCracken & DeGraff, of whom the plaintiffs are the survivors, eight months after date, at the Bank of Missouri, St. Louis, the sum of $1,496.47; that before the maturity of the bill the defendants duly accepted it; that at maturity demand was made, payment refused, protest and notice, and subsequent death of DeGraff; and as an excuse for not filing the bill with the petition, its loss or destruction was averred. The defendants answered, denying every material allegation of the petition, but setting up no new matter. The trial of the case was submitted to the court, and a verdict and judgment for the amount of the bill and interest were rendered for the plaintiffs. On the trial, the plaintiffs, by way of laying the foundation for the introduction of secondary evidence of the contents of the bill, among other evidence for the same purpose, read first the petition in this case together with the affidavit thereto of McCracken, one of the plaintiffs, and second, so much of a deposition of the plaintiff Gould taken in the cause as bears upon the question of the loss of the bill. The plaintiffs also, to prove the co-partnership of Gould, McCracken & DeGraff, and the death of the latter, read the deposition of one Burton.

The plaintiffs also read in evidence two affidavits in support of motions for continuances, one made by Trowbridge and the other by Priest, at different terms of the court pending the action--all which evidence was admitted against the objection and exceptions of the defendants. There were no declarations of law asked or refused on the trial. After verdict the defendants asked for a new trial, which was refused and they excepted. The only question in the case is, as to the admissibility of the testimony objected to.

1. The grounds of objection to the introduction in evidence of the petition and affidavit of McCracken and deposition of Gould, are not disclosed in the record; we will therefore only consider the question of their competency. That a party to a suit is competent to prove the loss of a paper by way of laying the foundation for the introduction of secondary evidence of its contents, provided it was lost out of his own custody, is so well settled by the practice of the courts as to admit of no question. Ordinarily the proof is made by calling the party at the trial, but it may be made just as well by his deposition. There is no reason for the exclusion of the deposition in such case that would not equally apply in any other.

The mode of making the proof by means of the petition and affidavit was improper, and not sustained by the practice of the courts.

Preliminary to the oath of the party in such cases, he must adduce some proof showing that the...