Whitesell v. Crane , 8 Watts & Serg. 369 ( 1845 )

The opinion of the Court was delivered by

Gibson, C. J.

On the ground of necessity, the plaintiff was competent not only to specify the articles contained in the trunk, but to prove the value of them. Book entries by the party’s own hand are evidence, not only of sale and delivery, but also of price, which is a part of the contract. Originally such entries were allowed to prove, perhaps, no more than delivery; but experience induced the courts to go further. Yet the value of merchandise, bearing, as it does, a determinate price in the market, might be more readily estimated from description than the more uncertain value of clothing in every degree of wear, which the owner would be better able to estimate than a disinterested witness, who must, after all, found his judgment on the description which the owner may choose to give. Why trust to his data, and not to his estimate ? It is as easy to give a false description as to overstate the value. The plaintiff’s testimony, therefore, was properly received.

But the deposition of the witness, who was within sixteen miles of the court-house, ought to have been ruled out. The rule of the Common Pleas in regard to it is a fragment of a most excellent system, established by the presidents of the judicial districts at the organization of the county courts under the constitution of 1790; and this part of it has been preserved entire until the present day. Indeed, it was taken from the rule of this court, which is still in force, and depositions under it have always been deemed provisional and secondary. In days gone by, the superiority of an examination in the face of the court and jury was justly appreciated, and I will not dwell on it; but to prevent truth and justice from being sacrificed to indolence and want of preparation, or something worse, it is our business to preserve at least the remembrance of it. These depositions have invariably been received as substitutes for present examination only when it was unattainable without a too great expenditure of money or trouble; and the party has always been required to produce the witness, if he were able to attend, and within the compass of forty miles. Was it in the plaintiff’s power to produce himl It is not pretended that he could not have been compelled to attend; and why was he not 1 When a party would prefer the deposition of his witness to an examination of him in court — and there are too many instances of such preference — the mere service of a subposna ought obviously not to stand for an excuse for his absence. If it were allowed, causes would, for the most part, be tried on depositions only; for few witnesses would attend of choice. It is easy to serve a subpoena; and easier still to make the witness comprehend that his attendance is not desired. Even where a party has acted with good faith, he is chargeable with laches if he do not have a defaulting witness brought in on attachment. A proper ground, therefore, was not laid.

The other exceptions are to the exclusion of evidence to prove conditions contained in handbills, conspicuously placed in the stage-offices at Easton and Philadelphia, and put up in taverns along the route, one of which was said to be exemption from risk for luggage, and to prove the course of the office in regard to booking the names of passengers, in order to raise a presumption of notice.

The evidence of destruction was sufficient. Of all documents, a handbill is the most fugitive and perishable. Who ever knew such a thing to be preserved, as required in this instance, for four years ? Pasted on an outside wall, it is destroyed by the elements; in the bar-room of a tavern, by those who light cigars; and in an office, by the next occupant. The apartment in which the office of the defendants had been kept in Philadelphia was used as a dry-goods store at the time of the search; and it is probable the office at Easton had undergone a similar transformation. In these circumstances, to require the original to be produced, or its destruction to be positively proved, would be unreasonable; and the proposed evidence of contents ought to have been received.

Evidence of the course of the office was competent to affect the plaintiff with notice. It was held, in Mesnard v. Aldridge, (3 Esp. 271), that the printed conditions of an auction are sufficiently made known to bidders by being pasted up in the auction-room; and the printed conditions of a line of public coaches are, with equal reason, sufficiently made known to passengers by being pasted up at the place where they book their names. It is their business to take notice of regulations which are sufficiently notorious by being published there, without requiring the book-keeper to repeat to each that luggage is at the risk of the owner. They are bound at all events; and though a servant be sent to the office, constructive notice to him is notice to his principal.

There is no apparent error in the charge; but as the cause will be tried on evidence which will probably present a different case, it has not been thought proper to examine the points in detail.

Judgment reversed, and a venire de novo awarded.