Morrison v. Judy , 123 W. Va. 200 ( 1941 )

The basis for recovery as pleaded in the original notice of motion was a renewal note dated July 27, 1931, apparently signed by the three defendants, and judgments were rendered thereon as to Judy and Boyd. Separate orders, which show the rendition of judgments, recite that said note was exhibited and filed. Subsequently, after due service of process, Lewis appeared, filed a plea of non est factum and a counter-affidavit denying liability. A mistrial resulted on the issues made by the original notice and the plea and counter-affidavit of Lewis.

The plaintiff amended his original notice of motion before and during the second trial. By the first amendment he relied on the original obligation; by the second amendment he changed his position and relied on the note dated January 27, 1930; and by the third amendment he alleged that the note dated January 27, 1930, was not in his possession and its whereabouts were unknown to him. Lewis pleaded in abatement the statute of limitations and release of liability.

Lewis did not deny signing the note dated January 27, 1930, and two renewals thereof, his plea of non est factum going only to the note dated July 27, 1931, and on the plea of non estfactum the plaintiff confessed judgment.

The plaintiff introduced Boone, assistant receiver, who testified as to the contents of a "note record," most of which record was in the handwriting of Z. H. Legg, the former cashier of the Bank of Pax. The witness Boone further testified, in part, that he had no personal knowledge of the transaction and that Zenith Legg (apparently the same person as Z. H. Legg) was present in court as a witness; that he had not been able to locate the note among the papers of the Bank of Pax; and that he had no information as to its location. The witness Boone further testified:

"Q. Now, this note that you claim to be suing on, of January 27, 1930: the record that you have there shows that that note was paid on March 28, 1930, doesn't it?

"Mr. Love: Objection.

"A. So indicated on the record.

"Mr. White: Q. Mr. Boone, I believe you said that you had hunted for this note, that is, the original note of January 27, 1930?

"A. Yes, sir.

"Q. And you have not been able to find it?

"A. I have not.

"Q. It is not among the records of the bank?

"A. No, sir.

"Q. Do you know what happened to it?

"A. I do not.

"Q. But the bank does not now have it?

"A. No, sir.

"Q. And has not had it since the institution of this suit originally, four years ago, has it?

"A. No, sir."

The plaintiff offered the testimony of the court reporter Keller, which was, in substance, that the defendant Lewis at a former trial admitted that he signed the note dated January 27, 1930, and two renewals thereof, which was excluded.

I cannot accede to the holding that the testimony of the court reporter was admissible to prove the contents of the note signed by Lewis.

I hold the view that the plantiff did not show that a diligent search was made. True, Boone said he had searched for the note "among the records of the bank" but had not been able to find it. This testimony does not show the diligence required.

"Before the contents of a lost paper can be properly given in evidence, it is not only necessary to prove that it is lost and that diligent search has been made to find it, but its due execution as well." Snyder v. Bridge Co., 65 W. Va. 1,63 S.E. 616, 131 Am. St. Rep. 947.

Secondary evidence is only admitted when for some reason primary evidence cannot be obtained and only after a showing of diligence. Kennedy v. Canadian Pacific Ry. Co., 87 Wash. 134,151 P. 252. This lack of diligence on the part of the plaintiff is apparent, when it is considered that Legg, the former cashier, was present in court as a witness, Legg being the person who made the original "note record."

No showing of diligent search was made for the note of January 27, 1930, and therefore the conclusion necessarily follows that the contents of the note could not be given in evidence. The loss of the note should have been shown with reasonable certainty as well as the further fact that it was not in possession of some of the makers thereof.Hammond v. Ludden, 47 Me. 447. While it may be conceded that the loss of the note was shown, there is no showing as to whether it had been destroyed, surrendered to one of the makers, or disposed of in some other way. The most that can be said is that it was not found in the papers and records of the Bank of Pax, no search or inquiry was made elsewhere.

The evidence herein shows on its face that the testimony of Legg, the cashier, could be obtained, and I have no doubt but that Legg knew of the original transaction. As he made the original record, this would have been primary evidence. Therefore, the testimony of the witness Keller was properly excluded. Klein Bros. v. Gibcomb (Texas Civ. App.),152 S.W. 462.

Conceding for the moment that the testimony of Keller was admissible, it seems to me that all the evidence offered on behalf of the plaintiff was still insufficient to support a verdict for the plaintiff had one been rendered thereon.Ketterman v. Dry Fork Ry. Co., 48 W. Va. 606, 37 S.E. 683.

There are other reasons which may be urged with some force to show the correctness of the trial court's ruling on the admissibility of Lewis' testimony at the former trial, but having reached the conclusion herein expressed, it necessarily follows that plaintiff failed to make a prima facie case and that trial court was right in directing a verdict for the defendant.

For the reasons stated herein, I would affirm the judgment of the trial court.