Saulsbury v. American Vulcanized Fibre Company
| Decision Date | 11 June 1914 |
| Citation | 91 A. 536,28 Del. 182 |
| Court | Delaware Superior Court |
| Parties | WILLARD SAULSBURY AND HUGH M. MORRIS, late trading under the firm name of SAULSBURY AND MORRIS, and ARTHUR J. SELFRIDGE, v. AMERICAN VULCANIZED FIBRE COMPANY, a corporation existing under the laws of the State of Delaware |
Superior Court, New Castle County, May Term, 1914.
SUMMONS CASE (No. 69, March Term, 1914).
Action of assumpsit by Willard Saulsbury and others against American Vulcanized Fibre Company to recover compensation for professional services rendered the defendant by the plaintiffs in instituting and conducting for the defendant certain litigation in the Court of Chancery of the State of Delaware. The issues of fact as well as of law were tried by the court, pursuant to the statute which permits trial in this manner when agreed to by the parties. See on error Boyce , 95 A. 1078.
In opening, the plaintiffs stated that their case was to be proved largely by documentary evidence.
Selecting one from a great number of books, documents and papers produced by the defendant upon an order of the court, made several days before the trial, Mr. Boyce said: I now offer this portion of these minutes in evidence, asked for by us to be produced by the defendant.
Mr Hilles:--We have not been asked to produce; they have been produced in the prothonotary's office by an order of your Honors.
Mr Boyce:--As I understand, this book has never been produced in the prothonotary's office.
If the minutes were produced by the defendant at the trial on notice from the plaintiffs, and were by them inspected, they thereby become evidence. If they were not so produced, but were produced upon the order of the court, such production and subsequent inspection do not make them evidence. Being made available by the court's order, they are here to be proven according to the rules of evidence.
Mr. Boyce:--These have been produced by the order of the court.
Mr. Hilles:--I have never received from the plaintiffs a notice to produce. I have produced these minutes upon the court's order for the purpose shown by that order.
Upon the date named in the notice, counsel for the plaintiffs made the motion for production, in conformity with the terms of the notice. Counsel for the defendant waived any question of the pertinency of the papers demanded, and submitted to an order to produce the same, stating, however, that he reserved to himself all rights to object to their introduction into evidence when offered.
This proceeding was had under a statute of this state which provides that:
"At any time during the pendency of actions at law, the court on motion and due notice thereof, may order a party to produce books or writings, in his possession or control, which contain evidence pertinent to the issue, under circumstances in which production of the same might be compelled by a Court of Chancery." Rev. Code, c. 107, § 13, Chapter 121, Volume 20, Laws of Delaware.
We understand that pursuant to that order, all the books and writings therein described, excepting certain of them shown not within the control of the defendant, were produced at the time and place named in the order and that they have since been transferred to and are now in the presence of the court. We also understand that the only notice for production made by the plaintiffs upon the defendant was the notice preliminary to the motion to produce. This being the state of the record, we will hear argument, if desired.
Mr. Boyce:--I offer as evidence the minutes of the meeting of the board of directors at which certain officers of the defendant company for the year 1913 were elected. Upon production by the defendant upon the court's order and after inspection by the plaintiffs, they are evidence under the decisions of this state, citing Netter v. Stoeckle, 4 Penn. 345, 56 A. 604; Thomas v. Railroad Co., 2 Penn. 411, 47 A. 380; Kelly v. Association, 1 Marv. 183, 40 A. 954; Frank v. Frank's Adm'r, 1 Houst. 245; Deringer v. Deringer's Adm'r, 5 Houst. 148.
Mr. Hilles:--I hold they are not in evidence. The order which your Honors made in relation to these papers was that they were to be produced for the inspection of counsel on the other side prior to the trial of this case, and I think during the case. Unquestionably that is not a production of the paper or document upon notice given to the other side, which notice the counsel on the other side has the right to accept or decline to accept as he sees fit. Consequently if he does voluntarily produce such documents upon notice, the production by him voluntarily makes them evidence without further proof. But certainly your Honors' order upon a party does not make the documents evidence, nor does it prove the validity of the documents offered.
There are two methods whereby a party may procure from his adversary documents and writings necessary to the proof of his case. The first is the common-law method by giving the adverse party notice to produce the writing at the trial, and upon its production by the party notified and upon its inspection by the party calling for it, it becomes evidence without further proof.
The reason for this rule lies in the theory that the production of a writing on notice, without objection by the party producing it, amounts on his part to an admission of its genuineness and relevancy, and inspection by the party calling for it is in effect an offer of the writing as evidence, thereby dispensing with the necessity of formal proof.
Upon notice to produce a writing the party notified may object to its admission in evidence, and the question of its admissibility will be determined by the court before it is produced and submitted for inspection. But if he fails to produce, when not relieved by an objection sustained by the court, the party calling for the instrument is then free to make proof thereof by secondary evidence.
This method was found to have its hazards and limitations, as it carried the risk of inspecting a paper when its contents were unknown, and restricted the use of the papers so produced, to evidence at trial, hence the enactment of the statute.
Under the statute the court may order a party to produce a writing shown to be pertinent to the cause, either for the inspection of a party before trial, or for use at trial, or, as in this case, for both purposes. Upon such an application, usually made long before trial, the court does not pass upon the admissibility of the paper as evidence. It makes the order upon being shown prima facie that the testimony sought is pertinent to the cause, and leaves the question of its admissibility to be determined when it is later offered in evidence at the trial. When the order is to produce before trial, the object of the party asking for the production, may be to enable him, by inspection, to prepare his pleading or by making a copy to prepare for secondary evidence in the event of the failure of his adversary to produce on notice. When production is made for inspection before trial the order is obeyed when the production is made and the opportunity for inspection is afforded, after which the paper is returned to its owner and can be called for at trial only upon another order or upon notice to produce. If the party seeking the paper wants it at the trial, the court may so order its production. When in obedience to such an order it is produced at trial, it is by the order and the compliance therewith made available to the party calling for it. If he desires it simply for inspection, it is within his control for that purpose; if he desires it for evidence, it is for that purpose in his possession, and he may offer it in evidence upon such proof thereof as is required by the rules of evidence, in exactly the same way as though he gained possession of the instrument otherwise than through the court's order. The party producing the paper under the court's order then has his first opportunity to object to its admissibility as evidence, and to except to the ruling of the court. In other words, the production of writings at trial, under an order authorized by the statute, simply makes available to a party something that otherwise is beyond his reach, and if he chooses to obtain it in this way, he must prove it just as though he had been in possession of it himself. We know of no rule, however, that prevents a party resorting both to an order of court to produce at trial and the common-law notice to produce at trial, which was not done in this case. Whether performance under the notice is possible because of compliance with an order of the court to produce would seem to depend upon whether the party notified has such possession and control over writings as to enable him to produce them on notice, when...
To continue reading
Request your trial
-
Foreman's Systems, Inc. v. Milk Dealers' Crate Corp.
... ... Company all my right, title and interest, in, to, by, from ... and ... Saulsbury v. American Vulcanized Fibre Co. , 28 Del ... 182, 5 ... ...