Sermons v. Allen, 184 N.C. 127 (1922)

Sept. 27, 1922 · Supreme Court of North Carolina

184 N.C. 127

CORNELIA SERMONS, Executrix, v. FRANK ALLEN et al.

(Filed 27 September, 1922.)

1. Evidence — Written Contracts — Lost Writing — Contents — Search— Notice to Produce.

Where a party to a written duplicated contract desires to introduce parol evidence of its terms, on the ground that he had lost his own copy, and on the failure of the adverse party to produce the duplicate original after notice, it is necessary that he shall have reasonably exhausted all sources of information and means of discovery of his own copy, of which the circumstances would suggest, and which were accessible to him; and the written notice to produce must also be reasonable as to time and place.

2. Same — Nonresident Party.

Where the adverse party, to whom notice to produce a written contract, the subject of the action, is to be given, resides at a different place from that of the trial, it is required, for the introduction of parol evidence of the terms of the writing, that such notice shall have been given him before he had left home to attend the trial, and notice thereof given him during the trial of the cause is insufficient.

Appeal by defendants from Granmer, J., at February Term, 1922, of CRAVEN.

Civil action to recover damages for an alleged breach of warranty or guarantee in a contract for the sale of land.

There was evidence on behalf of the plaintiff tending to show that the defendants agreed to sell the land in question, guaranteeing the plaintiff’s husband (since deceased) the sum of $20,000 in cash, or satisfactory notes and mortgage for said amount from the purchasers, and the defendants were to receive and retain all over and above this amount as commissions for making the sale. All costs of sale were to be paid by defendants. The land, supposed to contain 141.2 acres, was sold by the acre at $144 per acre, making a total of $20,332.80. Later the purchasers discovered that there was a shortage of 12.3 acres in the acreage, and they demanded a rebate or a credit of $1,771.20 on their note. This was allowed by tbe plaintiff, and sbe now brings suit to recover said amount from tbe defendants, on their alleged guarantee of a net return of $20,000.

Tbe defendants contend that they were only tbe selling agents of tbe owners, and that no such guarantee was incorporated in tbe contract. Tbe whole amount of tbe purchase price was turned over to plaintiff’s husband, and be paid tbe defendants their commission of $332.80.

From a verdict and judgment in favor of plaintiff, tbe defendants appealed.

Moore & Dunn and R. A. Nunn for plaintiff.

Guión & Guión for defendants.

Stacy, J.

Tbe contract between tbe parties was in writing, but it was not offered in evidence. Its terms are in dispute and tbe plaintiff undertook to show what they were by secondary proof. Tbe appeal presents, in tbe first instance, tbe competency of this evidence.

Henry L. Sermons, son of tbe plaintiff, but who was not a party to tbe suit, testified that there were four copies of tbe contract; that be bad a copy, bis father and mother each bad a copy, and that tbe defendants bad a copy. He further testified: “I do not know what became of them after tbe sale was concluded. I kept my copy in my trunk in tbe bouse. My wife and I have both looked thoroughly for it. I have not looked for my mother’s copy. We live about one hundred and fifty yards apart.

“Q. Just state what tbe contract was?”

Defendants’ counsel to tbe court: “If your Honor please, no notice has been served on us.”

Tbe court to defendants’ counsel: “Yes, sir; let that appear in tbe record.”

Plaintiff’s counsel to tbe court: “We now demand production of it, if they have it.”

Tbe witness further testified, on cross-examination: “I think there were two separate contracts made, one between me and Allen and Murray (for my part of tbe land), and one between my mother and father and Allen and Murray. ... I really don’t know whether there were two contracts or not. That’s tbe truth, for sure, I think there were two.”

Mrs. Sermons testified: “I remember tbe time tbe contract was made. I have never seen tbe contract since tbe day tbe land was sold.”

“Tbe court found as a fact that tbe contract in question, in tbe possession of tbe plaintiff, bad been lost, and that a diligent -search for it bad been made, to which tbe defendants excepted.”

We agree with counsel for defendants that tbe foregoing was not sufficient to warrant tbe introduction of secondary evidence to prove tbe contents of the written instrument. Avery v. Stewart, 134 N. C., 287, where this question is exhaustively treated in an opinion by Associate Justice Walicer. The only positive evidence of the loss of the contract here sued upon was the testimony of Mrs. Sermons to the effect that she had not seen the contract since the day of sale. The rule applicable in such cases is stated in 1 Greenleaf on Evidence, see. 558 (16 ed., sec. 563 b), as follows: “It seems that in general the party is expected to show that he has in good faith exhausted, in a reasonable degree, all the sources of information and means of discovery which the nature of the case would naturally suggest, and which were accessible to him.” See, also, Green v. Grocery Co., 159 N. C., 118, and Thompson v. Lumber Co., 168 N. C., 228.

It will be observed that the court’s finding only established the loss and inability, after diligent search, to locate the plaintiff’s copy of the contract. No notice was served on the defendants, prior to the trial, to produce their copy. The cause was then being tried in Craven County, and the defendant Allen lives in Wake. “Generally, if the party dwells in another town than that in which the trial is had, a service on him (to produce papers) at the place where the trial is had, or after he has left home to attend the court, is not sufficient.” Beard v. R. R., 143 N. C., 141.

The other exceptions are not likely to arise on another hearing, and we shall not consider them now.

New trial.