Benjamin S. Nichols, Respondent v. The Kingdom Iron Ore Company of Lake Champlain, Appellant

Benjamin S. Nichols, Respondent v. The Kingdom Iron Ore Company of Lake Champlain, Appellant. (Argued February 18, 1874; decided February 27, 1874.) Secondary evidence of the contents of a written instrument, when allowed, does not obviate the necessity of proving the genuineness of the instrument, but renders it more imperative. When secondary evidence of the contents of a writing is admissible, it is indispensable that the person by whom it is proposed to prove it should have seen and read the writing, and can speak from personal • knowledge. His having heard another person read it is not sufficient. Evidence of the receipt of a letter purporting to have been written by a person and mailed at his place of residence, is not sufficient to authorize its introduction in evidence against the alleged writer; there must be proof that he either wrote it or authorized it to be written or sent. In an action where the question was as to whether defendant or 0. purchased certain machinery of plaintiff, a witness for' plaintiff who set up the machinery, after stating the facts within his knowledge, was allowed to answer under objection, this question: “ For whom did you set up the machinery as you supposed ? ” Held, error. It appeared that plaintiff asked C. for payment of the bill for the machinery; as a witness in his own behalf, plaintiff was asked and allowed to answer, whether he asked 0. “ as his. debtor ” for payment. Held', error. This was an action to recover for certain machinery alleged to have been sold by plaintiff and his assignors to defendant, and for work and labor in setting up the same. The principal question litigated, was, as to whether the machinery in question was purchased by defendant or by one Colt,-its lessee. A witness called by plaintiff was permitted to state the contents of a letter purporting to have been written by defendant’s treasurer. After proof that the letter had been destroyed, without proof of the genuineness of the letter, another witness who did not read the letter and had no personal knowledge of its contents, and no knowledge except from hearing another read it, was allowed to testify as to its contents. Held, error; as above. A witness who set up the machinery, after stating the fact that he was hired and paid by Colt, and that his account was made out to the company who run the works under Colt’s lease, was asked: “ For whom did you set up that machinery as you supposed ? ” This was objected to and answer received under objection. Held, error. Proof was given that plaintiff demanded payment of his account of Colt. Plaintiff as a witness in his own behalf was asked, whether he asked Colt for' payment of the bill as his debtor. This was objected to as calling for a construction of what was said and not the language. The objection was overruled and witness allowed to answer. Held, error. Samuel Hand for the appellant. P. E. Havens for the respondent. [MAJORITY — Church, Ch. J.,] Church, Ch. J., reads for reversal and new trial. All concur. Judgment reversed.