Trowbridge v. Sanger , 4 Ark. 179 ( 1842 )

By the Court,

Lacy, J.

The rejection of the receipt constitutes the principal ground in support of the motion for a new trial. It is certainly- an inflexible rule of law, that written evidence is a higher grade of proof than oral testimony; and that, where the writing itself contains no ambiguity, in such cases, oral testimony is not admissible to explain or prove it. This rule, however, is not contravened, but expressly recognized by the principle that, if there is ambiguity in the instrument, then it is admissible to explain its uncertainty, or to supply its deficiency. In this case, it was certainly competent to have proved the date of the receipt by oral testimony, or to have shown it by circumstantial evidence connected with the transaction.

The receipt was given in payment of Trowbridge «fe Jennings’ account, the signature of Sanger was proved, and, if there had been satisfactory evidence given as to its date, (for aught that we can know), it might have established the discharge of Sanger’s account, or at least so much of it as it purported to pay. Dates, and amounts of receipts, are capable of being proved orally, and it is the daily practice of courts'of justice to permit it. They are merely defects or omissions, which may be properly supplied by other proof than the instrument itself; and the admission of such testimony comports with the rule of written evidence, and goes far to uphold it. The Court, then, certainly erred in rejecting the receipt as evidence; and, as the party’s rights may have been materially prejudiced by this error, a new trial should have been awarded, upon that ground alone. ,

Besides, we have looked into the evidence as presented by the record, and there is certainly no very satisfactory proof showing the partnership of Trowbridge <fe Jennings. Their liability depended upon their copartnership. This fact the declaration charged, and the plaintiff was bound to prove it by competent testimony. It was a substantial fact, capable of being established either by the partnership agreement itself, or by other acts and circumstances of a clear and explicit character, which would remove all difficulty upon the subject. We deem it unnecessary to analyze the testimony given upon this point, because we have already shown that the party was entitled to a new trial on other grounds.

Reversed, and a new trial awarded.