Krise v. Neason

• Citation: 66 Pa. 253
• Parties: Krise <I>versus</I> Neason <I>et al.</I>
• Decision Date: 03 January 1871
• Court: Pennsylvania Supreme Court

66 Pa. 253

Krise versus Neason et al.

Supreme Court of Pennsylvania.

October 24, 1870.

January 3, 1871.

October 24th 1870.

Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.

Error to the Court of Common Pleas of Cambria county: No. 78, to October and November Term 1869.

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G. M. Reade, for plaintiff in error.—In any case an opinion of handwriting must be founded on knowledge: Taylor v. Sutherland, 12 Harris 333; Hamsher v. Kline, 7 P. F. Smith 397. Before proving the contents, the existence of the instrument must be proved: McReynolds v. McCord, 6 Watts 288; Stone v. Thomas, 2 Jones 299; Porter v. Wilson, 1 Harris 641; McCredy v. Schuylkill Nav. Co., 3 Whart. 424; Power v. Fricke, 2 Grant 208; Tack v. Woods, 5 Casey 375. Only the original of an ancient document proves itself: Lau v. Mumma, 7 Wright 267; McReynolds v. Longenberger, 7 P. F. Smith 18. The search was not sufficient: Parks v. Bird, 3 Barr 360; Hartz v. Woods, 8 Id. 471; McGregor v. Montgomery, 4 Id. 237; Bierne v. Cunningham, 1 Wright 228; Vuyton v. Brenell, 1 Wash. C. C. R. 467; McConahey v. Centre Turnpike Co., 1 Penna. R. 428. The authentication by Ross's certificate was not enough: Piper v. Lodge, 16 S. & R. 214; Kern v. Swope, 2 Watts 75; Paull v. Mackey, 3 Id. 110; English v. Hannah, 4 Id. 424; Gilmore v. Wilson, 3 P. F. Smith 195. Search should have been made amongst Mr. Cox's papers: Parks v. Dunkle, 3 W. & S. 291; Simpson v. Dall, 3 Wall. 460.

R. L. Johnston, for defendants in error, as to 1st error, cited Taylor v. Meekly, 4 Yeates 79. As to 2d, Cauffman v. Presb. Cong., 6 Binn. 59. As to 3d, Kern v. Swope, 2 Watts 75; 1 Starkie on Ev. 341.

The opinion of the court was delivered, January 3d 1871, by SHARSWOOD, J.

It is certainly not to be denied, or even doubted, that to make a copy of a lost instrument of writing admissible, the evidence of the genuineness of the original from which it was taken must be of the most positive and unequivocal kind: McReynolds v. McCord, 6 Watts 288; Stone v. Thomas, 2 Jones 209; Porter v. Wilson, 1 Harris 641. But it does not follow that the only mode of establishing such genuineness is the testimony of a witness who saw the handwriting of the parties, and who knew and was able to identify it as such. If the party sought to be charged should himself hand the paper as genuine to a copyist, that certainly would be such an unequivocal acknowledgment of its genuineness as to dispense with any other evidence. The circumstances in evidence on the trial of this case as to the genuineness of the paper, a copy of which was offered and received, appear to us to be equal to such an acknowledgment.

That there had been in existence an article of agreement, was a fact established beyond all controversy. Indeed it was not denied. That it was a contract of sale of the 100 acres of land for which the ejectment was brought at 75 cents per acre, that $50 was paid on account and a receipt written on the instrument, were facts testified to by the plaintiff's own witnesses, as well as those of the defendant. A son of the plaintiff, examined on his behalf, was present at its execution. It was also in evidence by the testimony of both parties, and not disputed, that this written contract of sale was delivered to James Ross to keep as the mutual friend and custodian of both parties. He was the agent of both and each of them for this purpose. It appeared also, without contradiction, that the vendee, who was a brother of the vendor, had taken possession of the premises, and had afterwards made a lease to another brother. The present plaintiff then commenced an action of ejectment against the tenant, who, before the day of trial, called on Ross for the purpose of procuring a copy of the contract to submit to his counsel and prepare for his defence. In his presence Ross made a copy from a paper which he produced as the original. That copy is the one now in question. It was compared in the presence of the witness. Ross wrote and signed a certificate underneath "that the above and foregoing is a true copy of the article and receipt thereon written as left by the parties in my possession and with me remaining this 14th day of June, A. D. 1847." Ross himself was a subscribing witness to the original. He was living when the ejectment came on for trial. The jury were called, as appears by the record, October 4th 1847, and the next day the plaintiff suffered a nonsuit. Ross is now dead. After the most diligent search among his papers, the original is not to be found.

Now it is plain that James Ross, so far as the paper committed to his custody was concerned, was the agent of Valentine Krise for the very purpose of keeping that document. Not to part with the possession of it unless in obedience to the subpœna of some court, and to furnish a copy when required by either party or any person claiming under them, was also a part of the duty which naturally devolved upon him. Why shall not his acknowledgment of a paper produced by him as the original when so called on be as good primâ facie evidence of its genuineness as would its production by Valentine Krise himself? The evidence of John Krise to this acknowledgment of James Ross was positive and unequivocal, and the handwriting of Ross himself to the certificate was clearly proved. He had no interest to induce him to falsify. He had upon him the seal of the confidence of the plaintiff himself. Nor is this evidence, so far as the question of the admissibility of the copy to go to the jury is concerned, at all affected by other evidence calculated to inspire doubts as to whether it was a true copy from the original; such as the...