Merrill Lynch, Pierce, Fenner & Smith v. Zimmerman
| Decision Date | 02 December 1981 |
| Docket Number | No. 37998,37998 |
| Parties | MERRILL LYNCH, PIERCE, FENNER & SMITH v. ZIMMERMAN. |
| Court | Georgia Supreme Court |
C. B. Rogers and Paul W. Stivers, Atlanta, for Merrill Lynch, Pierce, Fenner & Smith, Inc.
Ira S. Zuckerman, Atlanta, for Robert H. Zimmerman.
Merrill Lynch sued Zimmerman to recover an amount allegedly due on a commodity trading account. At the close of the evidence the trial court directed a verdict in favor of Merrill Lynch. On appeal the Court of Appeals reversed. Zimmerman v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 159 Ga.App. 429, 283 S.E.2d 639 (1981). We granted certiorari to consider the following issue: Where a regulated business is required to prove that it is licensed in order to maintain an action for debt, does the best evidence rule require that the actual licensing document be entered into evidence, or will the testimony of an agent of the company be sufficient proof of licensing? We hold that the testimony of the agent is sufficient.
The transactions giving rise to the account in question in this case are governed by the Commodity Exchange Act which requires a company engaging as a commission merchant in soliciting orders or accepting orders for the purchase or sale of any commodity for future delivery be registered with the Commodity Futures Trading Commission. 7 U.S.C.A. §§ 6d, 6f. We assume, without reaching the question, it was necessary that Merrill Lynch establish that it was registered with the Commodity Futures Trading Commission in order to recover on its account. The office manager of Merrill Lynch testified that the company was registered with the Commodity Futures Trading Commission. The testimony was objected to on the ground the highest and best evidence would be the documents of registration. The objection was overruled. The opinion of the Court of Appeals held it was error to overrule this objection.
The best evidence rule, more correctly denominated the original document rule is as follows: In order to prove the terms of a writing, where the terms are material, the original writing must be produced unless it is shown to be unavailable for some reason other than the serious fault of the proponent. Wigmore on Evidence, Vol. IV, §§ 1173, 1174; McCormick, § 230, p. 560. Agnor's Georgia Evidence ; § 131, p. 289; The Georgia Law of Evidence, Green, § 100, p. 236. The rule is not one which places evidence into preferred degrees. Rather, it recognizes the central position writings have in the law. In many instances significant rights turn on the precise language used in a writing. When that is the case, the law prefers the writing itself be produced. Production of the writing also permits it to be inspected for evidence of fraud. McCormick, § 231, p. 561. In the case at hand there is no issue as to the precise language used in the license or other registration documents. Neither is there any contention of fraud. The question is simply one of the fact of issuance of the license or registration. That fact does not involve the contents of a writing within the meaning of the original document rule. Holcombe v. State, 28 Ga. 66 (1859); Green v. Johnson, 153 Ga. 738, 750, 113 S.E.2d 402 (1922); ...
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