Lott & Perkins v. Buck & Downing

This case presents for decision here the single question whether or not the court erred in refusing to admit in evidence a copy of a lease claimed to have been lost. The testimony relied on as laying the foundation for the admission of the secondary evidence is set forth in the official report. We agree with the trial court in holding that it was insufficient. At best, it did not affirmatively show that, at the time the copy was sought to be introduced, the original was not in existence or could not be found. That an ineffectual search was made for it at a time long previous to the trial, by the person in whose custody it was shown to have been when last seen, did not establish the fact that he had not in the meantime found the paper, or could not have produced it at the trial. Under the facts appearing, it is clear that a complete and proper showing with respect to the alleged non-existence or inaccessibility or loss of this paper could not be made without calling that person as a witness. For some reason this was not done, and no good reason for failing to do so was shown.

Judgment affirmed.