Southwick against Hayden

*Southwick against Hayden. NEW YORK, May, 1827. Though a through with outpobjection" and rests his otiiertMngshe j168 proved, by parol, a piece of writ-which ^should *>e produced, it to object that j*®^ ]™tmg duced. ti^retumed a document to +hg clfirk n office, with the papers, on appeal, and the clerk took out of a pigeon hole where such papers were usually kept, a bundle which he supposed to contain all the papers, and the document was not among them; but he made no search for the document; held, that this was not sufficient proof of loss to warrant parol evidence on that ground. But the action being for goods sold, and the document being a receipt for the goods; held, that it need not be produced, but that the delivery might be shown by parol; and that the contents of the receipt might be proved by parol, without accounting for its absence in any way. Proof of a sale of goods, or payment of money, may be made by parol, though there be a . receipt, without accounting for its absence; for parol proof is of as high a nature as the re ceipt. A receipt may be proved oy parol, without any account why it is absent. On error from the C. P. of Wayne county. The cause came there on appeal from a justice’s court; where Hayden declared against Southwick on a receipt signed, “ Nathan Pierce, for Chad. Southwick,” for 1428 bushels of C., at 28s. per hundred. Judgment for Southwick, whence Hayden appealed to the C. P., where a bill of exceptions was taken i « . . , . , , r , . by Southwick, upon which he brought error to this court; and which presented these facts: The plaintiff below examined four witnesses, .one of whom was Nathan Pierce, who received certain coal for the defendant below, which was intended by the receipt, He swore, that some time after they were received, he gave the receipt. No objection was taken to this testimony, till after the examination was closed, and the plaintiff below • a rested. The defendant then moved for a nonsuit, on the ground that the receipt had not been produced. The justice then testified, that he returned it to the clerk’s office with the other papers; and the clerk testified, that he took a bundle from the pigeon hole where papers relating to appeals wore kept, which he supposed to contain all the papers returned in the cause; but the receipt was not among them. That it was possible it might have been left, though he supposed he brought all the papers. It sometimes happened that a paper was put in a wrong pigeon hole. He made no search for the receipt. The court decided, that the objection of the defendant below came too late; but, that if made in time, sufficient proof had been given of the loss. The defendant below excepted. Judgment for the plaintiff below. G. H. Chapin, for the plaintiff in error, cited 1 Phil. Ev. 399, in the notes; 1 Esp. Rep. 355; 3 John. 300; *2 South. Rep. 773; 15 John. 286; 4 M. & S. 48; 4 Cowen, 483. S. Dickenson, contra, cited 3 Caines, 152, 186, 219; 5 John. 122; Laws, sess. 47, page 296; 2 John. 378; 5 id. 68; 3 id. 319; 4 Cowen, 355; 1 Ph. Ev. 78, 79; 3 id. 430; 9 John. 146; 2 John. Cas. 488; 8 John. 149. [MAJORITY — Curia, per Woodworth, J.] Curia, per Woodworth, J. I think the objection made by the defendant below was not too late. It was taken before the defendant offered any evidence. If the plaintiff produced the receipt at any time before he rested his cause, it was sufficient. The defendant, therefore, might well defer his objection, until the plaintiff had closed his testimony. If it was necessary to produce the receipt, or account for its loss, the plaintiff has failed. There is not proof of diligent search in the clerk’s office. Eor aught that was shown, it may remain there; as it appears to be satisfactorily made out, that the justice returned it to the office with other papers. It seems to me, however, that parol evidence was com petent. The receipt was only matter of evidence. Although the declaration says the plaintiff declared on the receipt, it must be understood as a declaration for coals sold and de Iivered. The receipt was not the contract; but evidence to ' support it. How, although a written contract cannot be varied or proved by parol, I apprehend that this rule is not applicable, in its full extent, to a receipt given on the delivery of money or articles. In the case of Toby v. Barber, (5 John. 72,) the court say, “ it has been repeatedly held in this court, that a receipt is an exception to the general rule, that a writing cannot be explained or contradicted by parol.” Receipts are not conclusive; but open to examination. In the case’ cited, parol evidence was admitted to show that the receipt, though purporting to be in full, was founded partly on a note, which had mot been paid; and consequently was no payment of the demand; there being no agreement to take it as such. It may, therefore, be laid down as undoubted *law, that parol evidence is admissible to explain or contradict the terms of a receipt. If this is so, it cannot be correctly said, that a receipt falls within the rule, requiring the best evidence the nature of the case admits of, to be produced. It must be only on the ground that the receipt was the best evidence, that the objection can be sustained; but how can that be called the best evidence, which is itself liable to be destroyed, and done away by parol evidence ? 1 The plaintiff was, therefore, not bound to produce the receipt. In this case, the parol evidence was peculiarly necessary and proper; for the receipt, had it been given in evidence, was unintelligible without the aid of parol testimony ; it appearing by the justice’s return, that it was given for a number of bushels of 0. The evidence shows coals were intended. I am of opinion, that the judgment of the common pleas be affirmed. Judgment affirmed.