National Surety Co. v. Brock, 176 N.C. 507 (1918)

Nov. 27, 1918 · Supreme Court of North Carolina

176 N.C. 507

NATIONAL SURETY COMPANY v. MOSES B. BROCK.

(Filed 27 November, 1918.)

Evidence — Federal Records — Certified Copies — Statutes—Distiller’s Bonds— Principal and Surety.

Under the Federal statutes, a distiller and tbe surety on bis bond are made liable for all taxes and penalties imposed, when tbe taxes bave not been duly paid by stamps, at tbe time and in tbe manner provided by law, as determined by tbe Commissioner of Internal Revenue and tbe assessment lists certified to the proper collectors, etc. In an action by the surety against the distiller to recover a penalty tbe former had paid on demand without notifying tbe latter, it is Held, that a- certified copy of the assessment lists on record in a public office or department of the government was tbe best evidence of their contents, under tbe provisions of our statutes, and that parol evidence thereof is improperly admitted,, constituting reversible error, to tbe defendant’s prejudice.

ActioN, tried before Cline, J., and a jury, at Spring Term, 1918, of' Davie.

Plaintiff sued for tbe recovery of $5,000, tbe amount of a distiller’s-bond given by the defendant to tbe United States to secure tbe payment of taxes assessed against him, and which tbe plaintiff bad signed for him as surety. Tbe plaintiff paid tbe amount of tbe bond to tbe Government upon a simple demand by it and without any notice to tbe defendant until this action was commenced. Tbe liability of tbe surety company and tbe defendant depended upon whether tbe taxes were duly assessed and a list thereof certified, as directed by tbe Federal statute, Eevised Statutes of tbe United States, sec. 3182, which provides: “The-Commissioner of Internal Eevenue is hereby authorized and required to-make tbe inquiries, determination and assessments of all taxes and penalties imposed by this title or accruing under any former internal revenue-act, where such taxes have not been duly paid by stamps, at the time and in the manner provided by law, and shall certify a list of such assessments when made to the proper collectors, respectively, who shall proceed to collect and account for penalties so certified!” U. S. Comp, Statutes (1918), West Pub. Co. Ed., sec. 5904.

The plaintiff was permitted to prove by a witness, without producing the record or showing its loss or any other reason for not producing it, that the assessment had been made and certified and the contents thereof, and this was done over the defendants objection and is assigned as error.

The jury returned a verdict for the plaintiff, and from the judgment thereon the defendant appealed.-

Hastings, Stephenson & Whicker and John C. Wallace for plaintiff.

A. E. Holton and B. G. Brock for defendant.

Walker, J.,

after stating the ease: The judge erred in admitting the oral evidence of the contents of the assessment list, as the rule is that they must be proved by the writing itself or by- an exemplified or certified copy thereof. 1 Elliott on Evidence, sec. 205: It is said that “the rule rests upon the presumption that where it appears that better evidence is withheld, the party who withholds it and seeks to substitute therefor evidence of an inferior kind has some sinister motive in doing so, or is conscious that his claim would not be supported, but would rather be defeated, if he introduced the best evidence. The object of the rule is to prevent fraud, and at the same time it brings out the most satisfactory evidence” and relates to the quality rather than to the quantity of evidence. 1 Elliott on Evidence, secs. 205, 206, 207, 212, and 409; Lockhart on Evidence, sec. 76; Rollins v. Wicker, 154 N. C., 560; Varner v. Johnston, 112 N. C., 570; Mott v. Ramsey, 92 N. C., 152; Cheatham v. Young, 113 N. C., at p. 165. Of course, where the ■original document is lost or its nonproduction otherwise excused, the rule does not apply. 1 Elliott on Ev., sec. 212; Varner v. Johnston, supra. It does not appear that the assessment list was lost nor that a, certified copy could not be produced. Our statute seems to recognize the “best evidence” rule in regard to Federal documents and has provided for just such a case as this one. Kevisal, sees. 1616, 1617, allowing a properly certified copy to be used as evidence to prove the contents of the original. The assessment is a matter of record in a public office or department of the Government and a certified copy can easily be obtained. The list, under U. S. Bev. Statutes, sec. 3187, when certified to the Collector of Internal Bevenue of the particular district, has the force and effect of a judgment and execution, and in an action by -the United States to, recover the taxes so assessed it makes a prima facie ease of liability to tbe Government. Western Express Co. v. U. S., 141 Fed., 28 (72 C. C. A., 516). So nxucb more tbe necessity for requiring-a strict compliance witb tbe rule. We need not discuss other errors assigned.

There must be a new trial because of tbe error indicated.

New trial.