Smith v. Brown
| Decision Date | 01 April 1890 |
| Citation | 151 Mass. 338,24 N.E. 31 |
| Parties | SMITH v. BROWN et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
L.D. Brandeis and W.H. Dunbar, for plaintiff.
J.H Robinson, for defendant Brown.
The defendant Griffiths, named in the writ, was not served with process; and the action was prosecuted against Brown alone under Pub.St. c. 164, § 14. The nominal plaintiff had declared upon a judgment recovered in New York against Griffiths and Brown on January 21 1887, alleging the action to be brought for the use of Shafer and Gottgetreu, to whom the judgment had been assigned in February, 1887, with notice to the defendants named and their attorney, of such assignment, shortly thereafter, and long prior to November, 1887. The defendant was permitted to file a declaration in set-off upon a judgment recovered by Brown and Griffiths in New York, November 21, 1887, against Smith. On the trial the plaintiff put in the record of a judgment such as that declared on, recovered by him against Brown and Griffiths in New York, and called Shafer, who was a member of the bar of New York, who produced a press copy of an alleged assignment of the judgment to Brown and Griffiths, of date of February 3, 1887, having previously testified that he had last seen the original in February, 1887, and that the sum was lost. He further testified that another formal assignment had been made to himself and Gottgetreu, which had been filed in the clerk's office of the court in New York, but which could not be removed from the files. Neither this latter assignment, nor a copy of it, was produced at the trial. In the record of the judgment put in evidence, the clerk's certificate stated "that the above judgment is assigned to Luther Shafer and Henry Gottgetreu.
The defendant excepted to the admission of the press copy produced by Shafer upon the ground that it was not competent evidence to prove the assignment of the plaintiff's judgment. He contends that a more satisfactory kind of secondary evidence existed, known to the plaintiff before the trial, and that no evidence was given that a search had been made for the assignment alleged to have been lost, and therefore that the evidence was inadmissible. We understand that the first of these objections refers to the formal assignment filed in the court, but the testimony of Shafer who was a lawyer, afforded evidence that might well satisfy the judge that this could not be taken from the files of the court, and it was also but a second assignment, which would have been inoperative had the first been really made, although it might have furnished evidence for the files of the court of the transfer. If there are several sources of information of the same fact, it is not ordinarily necessary to show that all have been exhausted before secondary evidence can be resorted [151 Mass. 340] to. 1 Greenl.Ev. § 84. It was sufficient to prove the loss of the instrument upon which the plaintiff relied. This being done, he was entitled to prove its contents by the secondary evidence of a press copy. Goodrich v. Weston, 102 Mass. 362. Whether there was sufficient evidence of the loss of the assignment, of which secondary evidence was admitted, was a question of fact for the presiding judge. Unless his finding was based upon an error of law, or upon evidence which, as matter of law, was insufficient to sustain the finding, it would not here be open to revision. Brigham v. Coburn, 10 Gray, 329, 331; Com. v. Morrell, 99 Mass. 542; Walker v. Curtis, 116 Mass. 98. The evidence of Shafer was positive as to the loss of the...
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