« PreviousContinue »
solicitor, and to permit him or them to take copies thereof; and any party not complying with such notice shall not afterwards be at liberty to put any such document in evidence on his behalf in such cause or matter unless he shall satisfy the court or a judge that such document relates only to his own title, he being a defendant to the cause or matter, or that he had some other cause or excuse which the court or judge shall deem sufficient for not complying with such notice; in which case the court or judge may allow the same to be put in evidence on such terms as to costs and otherwise as the court or judge shall think fit.” Rules 16–18 regulate the procedure under this rule. See hereon Quilter v. Heatly, 23 Ch. D. 42, c. A., explaining Webster v. Whewall, 15 Ch. D. 120.
General nature of secondary evidence.] There are no degrees of secondary evidence; or, in other words, if the production of the original document is dispensed with, its contents may be proved by the same evidence as any other fact is capable of being proved, and no other restriction is laid upon the party producing the evidence, as to the kind of evidence which he shall produce for this purpose, except that which arises from the risk of having it treated as unsatisfactory by the jury. This is what a jury would very probably do, and might possibly by a judge be advised to do, if it were patent that more satisfactory evidence was available to the party than that which he had thought fit to produce. Doe d. Gilbert v. Ross, 7 M. & W. 402.
The only exception is where, as in the case of public documents hereafter to be noticed, a special kind of secondary evidence is substituted for the original. But even in this case, if good reason can be shown why neither the original evidence nor the substituted evidence can be produced, secondary evidence of the ordinary kind will be admissible. 1 Taylor, Evid., $ 496; Thurston v. Slatford, 1 Salk. 284; MacDougal v. Young, Ry. & M. 392; Anon., 1 Vent. 257.
Proof of documents by copies.] It is a general custom, especially of persons in business, to keep copies of all the more important documents relating to the matters in which they are engaged. And there is no doubt that a well-authenticated copy is by far the most satisfactory substitute for the original document.
But, of course, no copy whatever is admissible in evidence unless its accuracy be sworn to, or there be some presumption attached to it froin which its accuracy may be inferred. Fisher v. Samuda, 1 Camp. 190. It is not necessary to call the very person who wrote the copy; any person who can testify on oath to the accuracy of it is sufficient. Everingham v. Roundell, 2 M. & Rob. 138.
A copy of a letter taken by a copying machine, though still only a copy, will be presumed to be a correct copy. Nodin v. Murray, 3 Camp. 228; Simpson v. Thoreton, 2 M. & Rob. 433. And such copy may be used as an admission. Nathan v. Jacob, 1 F. & F. 452. As to the use of an unstamped copy or part as secondary evidence of an original or part, see Stamps,Copy and Duplicate, post, pp. 248, 252. Where the plaintiff gave the defendant notice to produce certain letters written by the defendant to a third party, and a letter book containing copies thereof, and the defendant consented to admit the copies and produce the book : held, that the copies when produced must be presumed to be correct. Sturge v. Buchanan, 10 Ad. & E. 598. An entry by the plaintiff's deceased clerk in a letter book, purporting to be a copy of a letter from the plaintiff to the defendant, is presumed to be correct, proof being given that, according to the course of business, letters of business written by the plaintiff were copied by this clerk. Pritt v. Fairclough, 3 Camp. 305; Hagedorn v. Reid, Id. 377. See further Hearsay,—Entries in course of business, post, p. 60.
Among instances in which copies, though not verified by oath, are admissible, are the following:-A very old instrument, purporting to be it copy or abstract of a conveyance, and which for many years had gone along with the possession of the land, was admitted in evidence without proving it to be a true copy. B. N. P. 254. A copy of an old decree in Chancery, establishing certain customs as against the lord of the manor, found among the muniments of his successor, was held to be admissible, and presumed to be correct, against the successor, on account of its place of deposit. Price v. Woodhouse, 3 Exch. 616. See further, Lauderdale Peerage, 10 Ap. Ca. 722, et seq.
An old ledger or cartulary of an abbey, containing amongst other things an account of the several endowments, and found in the possession of the person who had succeeded to part of the abbey estates, was admitted as secondary evidence of the endowment, search having been made for the original endowment. Bullen v. Michel, 2 Price, 399; 4 Dow, 297. So also in Williams v. Wilcor, 8 Ad. & E. 314, a copy of a grant in an old cartulary seems to have been held admissible as secondary evidence. It is not clear whether the admission of old monastic cartularies stands on the same footing as that of Episcopal Registers mentioned post, p. 212 (sub tit. Effect of Documentary Evidence--Bishop's Registers), or of old copies and abstracts already referred to. In either case the antiquity of the document, and the inevitable exposure to destruction and loss of very old originals, give them a title to reception, which recent unexamined copies cannot claim; and the known usage of preserving verbatim enrolments and registers of the title-deeds of religious houses imparts to such collections, in some sort, an official character. Such copies, however, have never been admitted unless traced to the custody of some grantee of the corporate lands, and tendered as evidence in support of ancient possession, or preserved among the crown records as muniments of its title. If they come from custody unconnected with the lands, and even from a public national library, they are inadmissible. Swinnerton v. Stafford, Ms. of, 3 Taunt. 91 ; Potts v. Durant, 3 Anst. 789. See further Doe d. Padwick v. Wittcomb, 6 Exch. 601 ; 20 L. J., Ex. 297; 4 H. L. C. 425; and Proof of Documents-Custody of Ancient Writings, post, p. 102.
Where a will is lost the register or ledger book of the Ecclesiastical Court, or a copy of it, has been admitted as secondary evidence of a will of lands. B. N. P. 246. It is presumed that in this last case the will was of personal as well as real estate. See further, Proof of Probate, post, pp. 117, 118. Where the assignment under a commission of bankrupt was lost before it was enrolled pursuant to the old Act, 6 Geo. 4, c. 16, s. 96, the counterpart of it was admitted as secondary evidence. Giles v. Smith, 1 C. M. & R. 462.
As to the admissibility of secondary evidence where the original document has been attested, vide Proof of Documents-Proof of attested deed by secondary evidence, post, p. 137.
In numerous instances copies of public books and registers are good evidence of documents which are in existence without imposing any obligation to produce, or even to account for the non-production of, the originals. This sort of evidence is no doubt secondary in its nature, but is allowed by common law or statute on the ground of public convenience; vide, Proof of documents, post, p. 96.
ORAL EVIDENCE TO EXPLAIN OR ADD TO DOCUMENTS. The rule of law is clear that, where a contract is reduced into writing, it is presumed that the writing contains all the terms of it, and evidence will not be admitted of any previous or contemporaneous oral agreement which would have the effect of adding to or varying it in any way. This is a rule of evidence at common law. The Statute of Frauds also requires that certain contracts should be in writing, and therefore, by implication, evidence relating to such contracts which is not in writing is excluded. In other cases it is the duty of certain officers to record, in a manner more or less solemn, what is said or done; as in the case of records of courts of law, or depositions taken before magistrates on a criminal charge. How far such authentic memorials are conclusive is not very well settled, but they are certainly so in some cases. It is obvious that evidence might frequently be objected to as infringing more than one of these rules, and, where several objections might be good, it is not always easy to see which of the two in a particular case forms the ratio decidendi. The cases which we are about to consider are those where the decisions have been founded, or seem likely to have been founded, on the common law rule now under consideration.
Another remark which appears to be useful is this: that although the principles upon which the admissibility of evidence in these cases depends would appear to be general as regards all written instruments, they have not been applied in a precisely similar manner to all classes of cases. But perhaps this may be partly explained in the following manner. Inasmuch as the question is whether the written memorandum by its terms excludes oral evidence, the admissibility of the latter is in all cases, to a certain extent, and in some exclusively so, a question of interpretation of the written document. And inasmuch as, in analogy to the use of technical terms, language, by being constantly used for the same purpose, almost always acquires conventional meaning, such (corresponding) groups of cases as have been mentioned naturally arise. In fact, there are two questions of interpretation to be solved, whenever oral evidence is objected to on the ground that it contradicts a written instrument. First, the interpretation of the written contract as it stands; secondly, the interpretation of the clause which it is proposed to insert by way of addition or explanation, for that is really what is done ; and hence the same question as that which is raised upon the admissibility of evidence may be sometimes raised on the record by an objection in point of law.
Under a system of law, like our own, in which there are scarcely any canons of interpretation, and in a country where contracts, especially mercantile contracts, are very loosely drawn, a decision as to the meaning of one contract is rarely an authority as to the meaning of another.
Bearing these remarks in mind, it will be found that the apparent conflict between many of the cases may be reconciled. A good example of the truth of this remark will be found in the cases of Field v. Lelean, and Spartali v. Benecke, post, pp. 23, 25.
The following decisions will illustrate what is said above. Thus where it was agreed in writing that A., for certain considerations, should have the produce of Boreham meadow, it was held that he could not prove that it was at the same time agreed orally that he should have both Milcroft and Boreham meadow. Meres v. Ansell, 3 Wils. 275; Angell v. Duke, 32 L. T., N. S. 320, E. T. 1875, Q. B.; and see Hope v. Atkins, 1 Price, 143. So oral evidence is inadmissible to show that a note, made payable on a day certain, was to be payable on a contingency only. Rawson v. Walker, 1 Štark. 361; Foster v. Jolly, 1 C. M. & R. 703. So where a promissory note is expressed to be made payable on demand, oral evidence of a contemporary agreement, that it should not be paid until a given event happened, is inadmissible. Moseley v. Hanford, 10 B. & C. 729; see also Besant v. Cross, 10 C. B. 895; 20 L. J., C. P. 173; Adams v. Wordley, 1 M. & W. 374. So the terms of a bill of lading cannot be varied by oral evidence. Leduc v. Ward, 20 Q. B. D. 475, Č. A. But defendant may show that the agreement, though not under seal, was in the nature of an escrow, and signed on the express condition that a third party approved. Pym v. Campbell, 6 E. & B. 370; 25 L. J., Q. B. 277; Davis v. Jones, 17 C. B. 625; 25 L. J., C. P. 91; Wallis v. Littell, 11 Č. B., N. S. 364; 31 L. J., C. P. 100; Rogers v. Hadley, 32 L. J., Ex. 241 ; Lindley v. Lacey, 17 C. B., N. S. 578; 34 L. J., C. P. 7, cited post, p. 19. Where the conditions of sale described the number and kind of timber trees to be sold by lot, but not the weight of the timber, it was held, in an action for the purchase-money, that oral evidence could not be given by the defendant that the auctioneer had, at the sale, warranted the timber of a certain weight. Powell y. Edmunds, 12 East, 6; Shelton v. Livius, 2 C. & J. 411. So oral evidence is inadmissible to alter the legal effect and construction of a written agreement. Thus, where an agreement for the sale of goods was silent as to the time of delivery, in which case the law implies a contract to deliver in a reasonable time, it was held that oral evidence of an agreement to take them away immediately was inadmissible. Greaves v. Ashlin, 3 Camp. 426; Halliley y. Nicholson, 1 Price, 404. So where a contract of sale, being silent as to time of payment, implies payment on delivery, proof of intended credit is inadmissible. Ford v. Yates, 2 M. & Gr. 549. Where the defendant, the day after a sale by him of flour to the plaintiff, sent a memorandum of the sale, “Sold White's X. S.;” and delivered "White's X. S.” accordingly; it was held, that the plaintiff could not show that the contract was for “ White's X. X. S.” Hamor y. Groves, 15 C. B. 667; 24 L. J., C. P. 53. It is observable, however, that the four last cases were for non-performance of executory contracts within the Statute of Frauds, which ought to contain all the terms of agreement. So where the written agreement was to take goods on board a ship" forthwith," oral evidence to show that they were to be received on board in two days was not allowed. Simpson v. Henderson, M. & M. 300. An absolute sale of a reversion was held not to be qualified by proof of an oral agreement to apportion the accruing rent. Flinn v. Callow, 1 M. & Gr. 589.
But in order to exclude oral proof of a contract, the writing must purport to be a complete contract. Therefore where a written order for goods was sent without mentioning a time of payment, and they were delivered an invoice accordingly, it was ruled in an action for goods sold, that an oral agreement for six months' credit might be proved; for the order per se was no contract, but only evidence of some of the terms of one. Lockett v. Nicklin, 2 Exch. 93. So where a written proposal was not accepted, oral evidence of the terms of the contract is admissible. Scones v. Dowles, 29 L. J., Ex. 122. See also Eden v. Blake, 13 M. & W. 614, post, p. 29. And it would seem that when a writing is not ex necessitate legis (as under the Statute of Frauds), the apparent deficiencies of a written agreement as to some particulars of price, time of delivery, &c., may be supplied by oral evidence, although the jury would be directed to presume a reasonable price, or reasonable time, &c., in the absence of such evidence; for such evidence does not contradict or vary the written document as far as it goes; and it may be that the parties themselves did not intend to commit to paper the whole of the contract. See Valpy v. Gibson, 4 C. B. 837. Where the Statute of Frauds applies, oral evidence to supply the intention of the parties would not be admissible, as we have seen
above. See further the title Action for not accepting Goods, post, pp. 514, 515.
If a party sign an agreement in his own name he cannot afterwards defeat an action on it by proving that he signed only as agent for another. Magee v. Atkinson, 2 M. & W. 440; Jones v. Littledale, 6 Ad. & E. 486; Higgins v. Senior, 8 M. & W. 834. Where A. signed a charter-party as shipowner, and was so designated in it, A.'s principal could not sue on it, and prove that he was owner, and not A. Humble v. Hunter, 12 Q. B. 310. But if a sold note be in the form “sold to our principals,” oral evidence is admissible to show who those principals are. Cropper v. Cook, L. R., 3 C. P. 194. Where an instrument professed to be made between plaintiff and A., and signed by B. as agent for A., it was held that B. was not liable on the contract, if it turned out that he had no authority to bind A. Jenkins v. Hutchinson, 13 Q. B. 744. In an action on a written contract between plaintiff and B., oral evidence is admissible, in behalf of the plaintiff, to show that the contract was in fact, though not in form, made by B. as agent of the defendant; for the evidence tends not to discharge B., but to charge the dormant principal; Wilson v. Hart, 7 Taunt. 295 ; and it is admissible although B. named his principal at the time he entered into the contract. Calder v. Dobell, L. R., 6 C. P. 486, Ex. Ch. Where a deed between A. and Y., which contained a clause, “it is further understood between the parties that S. guarantees payment to Y. of all moneys due to them under this contract,” was executed by S. on behalf of A. under a power of attorney, thus, “P.P.A.-A.--S.," oral evidence was held admissible to show that S. signed on behalf of himself as well as for A., as this was doubtful on the face of the agreement. Young v. Schuler, 11 Q. B. D. 651, C. A. And see further 2 Smith's L. Cases, Thompson v. Davenport, in notis ; and Variance, post, pp. 92, 93.
Where a mortgage deed provided for the payment of the mortgage debt by instalments, and gave a power of sale if the mortgagor should make default in payment of the instalments, it was held that oral evidence was admissible to show that no default had been made, although the instalments had not been paid according to the deed. Albert v. Grosvenor Investment Co., L. R., 3 Q. B. 123. This decision was, however, disapproved in William8 v. Stern, 5 Q. B. D. 409, C. A.
A patent ambiguity is to be explained by the judge, and not left to the jury. Thus, whether a “month” means å lunar or calendar month, is a question for the judge; but extrinsic evidence is admissible that a word is used in a sense peculiar to some trade, business, place, or local usage, in which case it is for the jury to find the meaning. Simpson v. Margitson, 11 Q. B. 23; Smith v. l'hompson, 8 C. B. 44. See Hills v. London Gas Co., 27 L. J., Ex. 60, where it seems to have been considered that the judge must construe the contract, though its terms be technical or scientific, and that expert evidence on the point would be for the information of the judge, and not of the jury. In that case a patent for the use of hydrate of iron was contested, by showing that the use of carbonate of iron was not new, and that, in commerce, the scientific distinction between those two substances was not preserved, and Pollock, C. B., thereupon directed a nonsuit. But if their commercial identity had been disputed at the trial, there would have been a question for the jury, and on this ground, ut semble, a new trial was granted.
There are cases in which an oral agreement may exist between the parties to a written agreement on a matter collateral and superadded to it, so that both may well subsist together. In such cases oral evidence of the collateral matter is admissible, for the ori inal contract is unaffected by it. Thus, where the parties to an in lenture of charterparty afterwards agreed orally for the use of a ship at a period before the charterparty