Sauget v. Johnston
| Decision Date | 11 April 1963 |
| Docket Number | No. 18002.,18002. |
| Citation | 315 F.2d 816 |
| Parties | Francis L. SAUGET, Appellant, v. Herbert J. JOHNSTON, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Turner, Barrett & Ferenz, Howard G. Trapp and Walter Ferenz, Agana, Guam, and San Francisco, Cal., for appellant.
Carlos P. Taitano, Agana, Guam, Roy C. Hall and Alvin G. Buchignani, San Francisco, Cal., for appellee.
Before ORR, HAMLIN and DUNIWAY, Circuit Judges.
On or about the 28th day of January 1954, appellant and appellee entered into a written joint venture agreement and pursuant thereto, conducted business operations.
Disagreements arose and appellee insituted suit for dissolution of the joint venture and an accounting. Issues were joined and the case went to trial. During the course of the trial, appellee introduced a copy of the joint venture agreement, which the trial court admitted as being "an exact copy of the original."
The trial court ordered an accounting and referred the cause to a special master, who in due time made his report. Over the objection of the appellant, the master's report was accepted by the trial court; and judgment was entered in favor of appellee. On appeal here appellant assigns as error: (1) the admission in evidence of an alleged copy of the joint venture agreement; (2) the acceptance by the trial court of the master's findings of fact and the adoption by the court of his report; and (3) the determination that the applicable statute of limitations had not run.
As to the first assignment of error, it is claimed that a copy of the agreement was admitted in evidence in violation of the best evidence rule because no proper foundation was laid for its admission in that it was not shown that the original was not in existence. As a matter of fact, the original was in the possession of appellant, but no demand was made for its production.
A duplicate original or originally executed copy of a written instrument is generally considered to be an original within the meaning of the best evidence rule; and appellee testified that his original copy was missing and could not be found after a diligent search. The primary reason the original of a writing is preferred to a copy is that the copy is always subject to errors on the part of the copyist. See 4 Wigmore, Evidence § 1179 (3d ed. 1940). Appellant does not contend that there was any discrepancy between the terms of the copy and the original agreement. Both appellant and appellee testified as to the contents of the joint venture agreement; and their testimony does not conflict with the terms of the agreement as shown by the copy. The copy was also corroborated by a rough draft of the agreement, that was initialed by both parties and admitted in evidence. Even though the trial court erred in admitting the copy in evidence, we conclude that it was harmless error within the meaning of Rule 61 of the Federal Rules of Civil Procedure, 28 U.S.C.A.
The second assignment of error is without merit. It deals with the acceptance by the court of the master's report....
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...U.S., 332 F.2d 279 (5th Cir. 1963), cert. denied, Bergman v. U.S., 377 U.S. 952, 84 S.Ct. 1630, 12 L.Ed.2d 497 (1964); Sauget v. Johnston, 315 F.2d 816 (9th Cir. 1963), and the contention is Plaintiffs next pose an array of challenges to comments of defense counsel during closing argument. ......
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...The motion for a new trial based on the insufficiency of the evidence was therefore properly denied. L.Ed.2d 497 (1964); Sauget v. Johnston, 315 F.2d 816 (9th Cir. 1963). Turning to the sentencing phase of the trial, we are constrained to conclude that the judge's findings, in the most part......
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