Greene & Kahl v. A. F. Messick Grocery Co.

• Decision Date: 01 May 1912
• Citation: 74 S.E. 813,159 N.C. 119
• Parties: GREENE & KAHL v. A. F. MESSICK GROCERY CO.
• Court: North Carolina Supreme Court

74 S.E. 813

159 N.C. 119

GREENE & KAHL v. A. F. MESSICK GROCERY CO.

Supreme Court of North Carolina

May 1, 1912

Appeal from Superior Court, Forsyth County; Daniels, Judge.

Action by Greene & Kahl against the A. F. Messick Grocery Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Parol proof of contents of a telegram held inadmissible without proof of search for original, kept in company files.

Watson Buxton & Watson, for appellant.

Louis M. Swink, for appellees.

HOKE J.

This was an action to recover $400 as money had and received to plaintiffs' use, and was before this court on a former appeal. 153 N.C. 409, 69 S.E. 412. From a perusal of that case, it will appear that the right of plaintiffs to recover was properly made to depend on whether defendant company resident at Winston, N. C., had sent a telegram to plaintiffs at St. Louis, Mo., accepting a proposal of plaintiffs' to rent a hotel from defendant on terms contained in a letter from plaintiffs to defendant company. On the present trial defendant testified that on receipt of plaintiffs' letter, containing the proposal, he had gone to the Western Union office, and sent a telegram; the message having been written and left with the company for transmission. In reference to this message and its contents, it appeared that at the time of this occurrence, written messages, the kind in question, were kept at the local office in Winston for six months, and were then either destroyed or sent to Richmond Va., the headquarters of the company for this division; that defendant had applied to the office at Winston, and failed to get the message, and had then gone to Richmond, Va. and made inquiry, and failed to procure it there, having applied for it at company's offices. On this testimony, the court being of the opinion that the loss of the written message had not been satisfactorily established, declined to allow witness to give the contents of the message to the jury, and defendant excepted. It was urged by plaintiffs that this ruling of his honor should be sustained for the reason that the contents of the supposed message were nowhere sufficiently disclosed to render its exclusion a material circumstance, but, conceding that it is otherwise, we are of opinion that the ruling of the court must be upheld for the reason given by his honor that the loss of the message has not been shown so as to permit parol evidence of its...