Security Trust Co. v. Robb

• Decision Date: 09 January 1906
• Docket Number: 6.
• Citation: 142 F. 78
• Parties: SECURITY TRUST CO. v. ROBB et al.
• Court: U.S. Court of Appeals — Third Circuit

142 F. 78

SECURITY TRUST CO. v. ROBB et al.

No. 6.

United States Court of Appeals, Third Circuit.

January 9, 1906

John G Johnson, for plaintiff in error.

Robert H. McCarter, for defendants in error.

Before ACHESON, DALLAS, and GRAY, Circuit Judges.

DALLAS Circuit Judge.

This case was here in March, 1903, and the decision then made has been reported in 121 F. 460, where, in the syllabus, the reporter has supplied a summary of the material facts, which for the present purpose sufficiently states them. It is substantially as follows:

'Thomas Robb, an indemnitor of the Security Trust Company, surety on a forthcoming replevin bond, was notified to defend an action thereon, which he did. After an adverse judgment, it was agreed that a writ of error should be sued out, and the indemnitor made arrangements with the City Trust, Safe Deposit & Surety Company, a surety company satisfactory to the Security Trust Company, to execute the necessary bond. During the 10 days within which the bond could be filed and the supersedeas obtained, the Security Trust Company, with knowledge acquiesced in the arrangements, and, on the last day on which the bond could be executed, a bond properly drawn and executed by the City Trust, Safe Deposit & Surety Company was presented to the Security Trust Company for its signature, according to the uniform practice, when it for the first time refused to execute the bond or continue the litigation. Thomas Robb, the indemnitor, sued out the writ of error in the name of the Security Trust Company, without a supersedeas, to which the Security Trust Company subsequently objected, and, after paying the judgment appealed from, notified the indemnitor that, unless further security was given, it would move to dismiss the appeal, whereupon the writ of error was discontinued by the indemnitor.'

The decision above referred to reversed a judgment for the defendant below (116 F. 201), which had been entered on a verdict directed by the court. But upon the ensuing new trial (to which the present writ of error relates) the case was submitted to the jury, with instructions which conformed to the views expressed by this court upon the former occasion, and which were not in any respect open to valid exception. Of the specifications which go to the charge we do not deem it necessary that more should be said; but those which aver that errors were committed in the rejection or in the admission of evidence raise questions which were not previously presented, and to them therefore we have now given special and careful consideration.

1. The plaintiff below (and here) offered in evidence, and the court excluded, two writings purporting to be copies, one of a letter dated January 31, 1901, addressed by F. R. Fithian, president of the plaintiff company, to the City Trust, Safe Deposit & Surety Company; and the other of a letter (written in reply to the former) addressed by William G. Wise, assistant trust officer of the last-mentioned company, to Francis R. Fithian, president, etc. With the subject-matter of these letters we need not concern ourselves, for the question be decided is not whether their contents were relevant, but whether, assuming their relevancy, the proposed manner of proving them was a permissible one. The original letters were not produced. They were not in the possession or power of the adverse party. Presumably, the letter of Fithian to the City Trust Company remained in its custody; but, though its officers were subject to subpoena, and its assistant trust officer and one of its employes were actually examined as witnesses, none of them was required to produce it. The letter from Wise to Fithian, president of the plaintiff company, was not shown nor alleged to have been destroyed or lost, and therefore, in presumption of law, it was still in that company's keeping. As to both letters, then, we think it would be difficult to conceive of a case more clearly within the rule that secondary evidence may not be given without legally sufficient reason. This rule is an important and familiar one. It is a necessary deduction from the law's requirement that the best evidence of which the case in its nature is susceptible shall always be presented. It has for its object the prevention of fraud, and its enforcement is essential to the pure administration of justice. Taylor on Ev. (Amer. Ed. 1887) vol. 1, p. 365, et seq. It has been applied by our courts, both state and federal, in many instances, but it will suffice to refer to its statement in the cases of Tayloe v. Riggs, 1 Pet. 591, 7 L.Ed. 275,

and Carland v. Cunningham, 37 Pa. 231. In the former, Chief Justice Marshall, speaking for the Supreme Court of the United States, said:

'The rule of law is that the best evidence must be given of which the nature of the thing is capable; that is, that no evidence shall be received which presupposes greater evidence behind, in the party's possession of power. The withholding of that better evidence raises a presumption that, if produced, it might not operate in his favor. For this reason, a party who is in possession of an original paper, or who has it in his power, is not permitted to give a copy in evidence, or to prove its contents.'

In the latter, Mr. Justice Thompson, on behalf of the Supreme Court of Pennsylvania, used this language:

'It is a rule of evidence, too ancient and too well understood to require proof of its existence, that the original instrument is better evidence than a copy, and that the primary source of information is better than the secondary. The latter is only resorted to after the necessity for doing so is shown to exist in an inability to produce the former. If the original instrument be lost or destroyed, this is a sufficient ground for secondary evidence. So if it be shown to be in the hands of the opposite party, who refuses to produce it on notice. But a preliminary step to proof of contents, after proof of existence, is proof of notice to produce it. This is indispensable to the admission of secondary evidence. Inconvenience or absence from the state is not an excuse for omitting this notice.'

That in these cases the originals happened to be in the possession of the party himself, whereas the Fithian letter was in the hands of a stranger, is unimportant, for by subpoena duces tecum the production of that letter could have been secured, and the issuance of such a subpoena was as essential a prerequisite to the reception of secondary evidence of its contents, as, in the case of the Wise letter, was proof of its loss or destruction to the introduction of a copy of it. But it is contended that, notwithstanding the apparent conclusiveness of the rule we have discussed, the admissibility of the copies herein question resulted from the existence of two facts which were indisputably established. The first is that the Fithian letter had been read to Henry B. Robb, who testified that he had no doubt that the paper offered was a copy of it; and the other is that in a certain answer in equity there was contained a copy of that letter, and also of the Wise letter.

It may be taken as conceded that Henry B. Robb fully represented Thomas Robb, the defendant; for, if Thomas Robb himself had heard the Fithian letter read, that fact, in our opinion would not have sufficed to justify the reception of a copy of it, though testified to be a correct one, in substitution for, and in the unexplained absence of, the letter itself. The question whether secondary evidence of any kind may be given is quite distinct from the question whether the particular evidence proposed would be, as secondary evidence, admissible. Even where a copy of a writing is unquestionably competent, it must be made to appear that the copy presented is a correct one; but the most conclusive proof of its correctness will not render a copy available, without ground laid for dispensing with the production of the original. Here the ground relied upon is that the letter had been read to an agent of the defendant; but, as we have said, if it had been read to the defendant himself, that circumstance would have constituted no adequate foundation to support the allowance of secondary evidence of its contents. Such evidence may be resorted to only after the necessity for doing so has been shown to exist in an inability to produce the primary evidence. The best evidence is always required, and therefore the memory of a witness, however credible, as to the accuracy of a copy, will not justify its substitution for an original which is either in the possession or in the power of the party by whom such substitution is attempted. The Supreme Court of Pennsylvania, in Buchanan v. Moore, 10 Serg.& R. 275, not only assumed the general rule to be that the loss or destruction of a document must be shown before secondary evidence may be given (page 279), but appears to have distinctly decided the point which is now under consideration. That case was before the Supreme Court upon writ of error to a judgment in an action of ejectment, wherein Moore was the plaintiff and Buchanan and others were the defendants. Upon the trial below, 'the only matter in dispute was what was the land sold by the sheriff to the plaintiff. ' In order to sustain his side of that dispute, the plaintiff offered the deposition of George Stroop, in which he testified that Buchanan had told him that the lands were not properly described in the advertisement of sale; and that at some other time he would give him a proper description; and that, accordingly, Buchanan called on him some time afterwards, 'with a small paper containing a description of his lands advertised for sale, in which the sawmill tract was described as containing upwards of 300 acres. ' This part of the...